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Development From The “Other Universe” – In Dismissing FCPA-Related Civil Claims, Judge Rejects The Notion That The FCPA “Establishes A Statutory Floor For Adequate Internal Controls”

parallel universe

Foreign Corrupt Practices Act issues often co-exist in two parallel universes.

One universe is ruled by perceived all-powerful gods with big and sharp sticks in which subjects dare challenge the gods. Another universe consists of checks and balances in which independent actors call the balls and strikes.

The first universe refers to FCPA enforcement by the DOJ and SEC. The second universe refers to litigation of FCPA-related claims in which judges make decisions in the context of an adversarial legal system. This second universe is often referred to as the rule of law universe.

There are several examples of theories used in the first universe that do not work in the second universe.

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The Challenges Of Detection And Prevention

challenge

The recent London Bridge attack in London. The January 2017 shooting at the Fort Lauderdale airport. The June 2016 shooting at an Orlando nightclub.

These recent instances, and several other similar acts of violence, have little in common with alleged Foreign Corrupt Practices Act offenses.

Except there is often a common thread in terms of the challenges of detection and prevention.

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Friday Roundup

Roundup

Offensive use of the FCPA, a weekend homework assignment, already answered, scrutiny alert, and for the reading stack. It’s all here in the Friday roundup.

Offense Use of the FCPA

FCPA Ripples highlights, among other things, how the FCPA is increasingly being used offensively including in connection with battles for corporate control.

The latest example concerns Elliott Management Corporation’s efforts to unseat board members at Arconic Inc. The recent departure of Arconic’s CEO Klaus Kleinfeld for apparently threatening Elliott Management (an existing Arconic shareholder) was all over the news (see here for example) and this recent Elliott Management letter to Arconic shareholders assails the “poor judgment” of Arconic’s board including the following.

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All We Need Is Trust :)

Trust

It’s as predictable as the sun rising in the morning.

A corporate “crisis” happens and supposed compliance “commentators / gurus” or those with fancy self-made titles or institutional affiliations come out of the woodwork with the supposed secret sauce like “doing compliance,” “tone at the top,” “values-based culture” and my favorite “trust.”

Indeed, “Trust Your Employees, Not Your Rule Book,” was the title of this recent article in the Harvard Business Review.

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A Case Study In Risk Aversion Or What Happens When Defendants Fight Back

fightback

[This post is part of a periodic series regarding “old” FCPA enforcement actions]

Previous posts here and here highlighted the 2001 DOJ/SEC FCPA enforcement action against KPMG Siddharta Siddharta & Harsono (KPMG-SSH) and Sonny Harsono and Baker Hughes regarding alleged improper payments in connection with an Indonesia tax assessment. All of the defendants resolved the enforcement actions without putting the DOJ/SEC to its burden of proof (the risk aversion portion of this post).

However, also in 2001 the SEC charged Eric Mattson (the former CFO of Baker Hughes) and James Harris (the former Controller of Baker Hughes) with Foreign Corrupt Practices Act offenses based on the same substantive allegations. Unlike the other defendants, as highlighted in this post, Mattson and Harris fought back – a process that resulted in a federal court judge dismissing the FCPA charges against them.

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