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What Should Happen When Compliance Is Ignored?

questions to ask

The recent Barclays Foreign Corrupt Practices Act enforcement action was based on alleged improper internship and hiring practices (see here and here for prior posts).

In the enforcement action, the SEC acknowledged that the company had several compliance policies and procedures to mitigate risk in this area.

For instance, the SEC stated: “Barclays promulgated anti-bribery and corruption policies that included prohibitions on providing employment in exchange for business.”

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Further To The SEC’s Inconsistent Approach To Enforcing The FCPA’s Books And Records And Internal Controls Provisions

inconistent

Other than this website (see here, herehereherehere and here), there seems to be little focus on the SEC’s inconsistent approach to enforcing the FCPA’s books and records and internal controls provisions.

Which is too bad because consistency is a basic rule of law principle. In other words, the same legal violation ought to be sanctioned in the same way. When the same legal violation is sanctioned in materially different ways, trust and confidence in law enforcement is diminished.

As highlighted in the numerous prior posts as well as the latest example described below, there sure does seem to be a lack of consistency between how the SEC resolves Foreign Corrupt Practices Act books and records and internal controls violations.

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Issues To Consider From The Juniper Networks Enforcement Action

Issues

This prior post highlighted the SEC’s $11.7 million Foreign Corrupt Practices Act enforcement action against Juniper Networks. This post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this prior post, Juniper Networks disclosed its FCPA scrutiny in mid-2013. Thus, from start to finish the company’s FCPA scrutiny lasted an unconscionable six years.

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FCPA Flash Podcast – A Conversation With Lucinda Low

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Lucinda Low (Steptoe & Johnson). During the podcast, the experienced FCPA practitioner: (i) provides an assessment of 2019 FCPA enforcement; (ii) discusses the long time periods associated with FCPA scrutiny; (iii) explores the broadness of FCPA enforcement specifically the FCPA’s accounting provisions; and (iv) highlights why she believes the FCPA should be amended to include a compliance defense.

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Issues To Consider From The Microsoft Enforcement Action

Issues

This prior post went in-depth into the recent Microsoft Foreign Corrupt Practices Act enforcement action and this post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this prior post, Microsoft was reportedly under FCPA scrutiny in various countries since early 2013. Thus, from start to finish the various facets of the company’s FCPA scrutiny lasted an unconscionable 6.5 years. If the DOJ and SEC want their FCPA enforcement programs to be viewed as credible and effective, they must resolve instances of FCPA scrutiny much quicker.

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