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FCPA Flash Podcast – A Conversation With Daniel Suleiman Regarding Internal Investigations

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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¬†Daniel Suleiman (Covington & Burling who previously served as a senior official in the DOJ’s Criminal Division including as Deputy Chief of Staff & Counselor to the Assistant Attorney General). During the podcast, Suleiman discusses the life cycle of FCPA internal investigations including: issues warranting an internal investigation; who should conduct the investigation; how to conduct the investigation; what to do with investigative findings; and how to properly scope investigations.

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Friday Roundup

Roundup

Interesting, across the pond, non-profit scrutiny, and for the reading stack. It’s all here in the Friday roundup.

Interesting

The DOJ’s FCPA’s Corporate Enforcement Policy states:

“When a company has voluntarily self disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated … there will be a presumption that the company will receive a declination absent aggravating circumstances involving the seriousness of the offense or the nature of the offender. Aggravating circumstances that may warrant a criminal resolution include, but are not limited to, involvement by executive management of the company in the misconduct; a significant profit to the company from the misconduct; pervasiveness of the misconduct within the company; and criminal recidivism.”

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Fourth Circuit Agrees With Walmart On Privilege Issue Relevant To FCPA Inquiry

Judicial Decision

As highlighted in this recent post, Walmart and the government seem to be at an impasse regarding resolution of Walmart’s FCPA scrutiny first disclosed in late 2011. As highlighted by Bloomberg, one reason appears to be side litigation between the government and Walmart concerning certain privileged issues.

In late June 2018 the Fourth Circuit, in this decision, agreed with Walmart’s position. Although the opinion does not technically mention Walmart, Bloomberg reports that “two people familiar with the matter confirmed that the company was Walmart.” Moreover, this is fairly obvious to anyone closely following Walmart’s long-standing scrutiny.

As highlighted below, the Fourth Circuit’s opinion was based on “standard principles of contract interpretation” and is clearly not the most exciting decision to read. However, this is the second decision in the FCPA context in recent weeks in which a court disagreed with the government’s interpretation of a document relevant to an FCPA inquiry. (See here for the recent decision in SEC v. Cohen et al in which a court disagreed with the SEC’s position regarding a tolling agreement).

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Beam Pours $8.2 Million Into The Treasury And Becomes The Latest Alcoholic Beverage Company To Resolve An FCPA Enforcement Action Based On India Conduct

Beam

First it was alcoholic beverage company Diageo based on conduct in India and elsewhere (see here).

Then it was alcoholic beverage company ABInBev based on conduct in India (see here).

Yesterday, the SEC announced yet another Foreign Corrupt Practices Act enforcement action against an alcoholic beverage company for conduct in India.

This time it was Beam Inc. (now known as Beam Suntory Inc.) which up until April 2014 had shares traded on the New York Stock Exchange until Suntory Holdings Limited (a Japanese company) acquired Beam which thereafter delisted from the NYSE.

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The Supreme Court’s Recent Unanimous Decision In A Restitution Case Provides Yet Another Reason Not To Voluntarily Disclose

supremecourt

The scenario is relatively common. Whether in the Foreign Corrupt Practices Act context or otherwise, an individual acts contrary to the law and when his or her conduct is discovered various business organizations impacted by the illegal activity conduct an internal investigation.

The question arises: if the individual engaged in the illegal activity is convicted, may the impacted business organizations recover from the individual internal investigation expenses under the Mandatory Victims Restitution Act (MVRA) and, if so, under what circumstances? In recent years, circuit courts have split on the relevant issues.

Last week though the Supreme Court provided clarity in Lagos v. U.S. In the unanimous decision authored by Justice Breyer, the court concluded that the words “investigation” and “proceedings” in the MVRA are limited to government investigations and criminal proceedings. After excerpting the case, this post highlights how business organizations can best position themselves for MVRA restitution in certain FCPA matters by not voluntarily disclosing.

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