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DOJ Releases “The Evaluation Of Corporate Compliance Programs” Guidance Document

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Earlier this week, the DOJ Criminal Division released this guidance document titled “The Evaluation of Corporate Compliance Programs” (ECCP).

The latest version of the guidance document which “sets forth topics that the Criminal Division has frequently found relevant in evaluating a corporate compliance” is likely to generate a substantial amount of coverage. However, there is little new substantive information in the document compared to the DOJ’s February 2017 release of its Evaluation of Corporate Compliance Programs (see here for the prior post) and in fact there was little new information in the February 2017 document as it cited to sources long in the public domain). Indeed, the ECCP contains a spot-on footnote which states that many of the topics discussed appear in other resources long in the public domain.

While the ECCP is not Foreign Corrupt Practices Act specific, it is FCPA relevant. Nevertheless, the policy issue raised with the ECCP (as well as other forms of DOJ guidance) is what should happen if a business organization acts consistent with the factors, but an employee nevertheless exposes the entity to legal liability. Consistent with the FCPA-like laws of many peer countries, this should be relevant as a matter of law and not merely in the opaque, inconsistent, and unpredictable world of DOJ decision making. (See here).

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Fresenius Medical Care Pays Approximately $232 Million To Resolve Its Long-Standing FCPA Scrutiny

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German healthcare firm Fresenius Medical Care AG (a company with American Depositary Receipt shares traded on the NYSE) has been under FCPA scrutiny since 2012 (no that is not a typo).

Today the DOJ and SEC announced (here and here) an approximate $232 million enforcement action ($84.7 million to the DOJ and $147 million to the SEC) against the company for alleged bribery schemes involving physicians and other healthcare personnel in Angola, Saudi Arabia, Morocco, Spain, Turkey, Gabon, Benin, Burkina Faso, Senegal, Ivory Coast, Niger, Cameroon China, Serbia, Bosnia, and Mexico.

While not specified in any of the resolution documents, the DOJ’s non-prosecution agreement and SEC’s administrative order make generic reference to the Angola and Saudi Arabia conduct involving ‘agents and employees utiliz[ing] the means and instrumentalities of U.S. interstate commerce, including the use of internet-based email accounts hosted by numerous service providers located in the United States.”

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DOJ FCPA Enforcement – 2018 Year In Review

Justice Dept

This previous post highlighted various corporate Foreign Corrupt Practices Act enforcement statistics from 2018 and this post goes in-depth into various facts and figures relevant to DOJ FCPA enforcement in 2018. (See here for a similar post from 2017, here for a similar post from 2016, here for a similar post from 2015, here for a similar post from 2014, here for a similar post from 2013, here for a similar post from 2012, here for a similar post from 2011, and here from 2010).

Settlement Amounts and Specifics

In 2018, the DOJ brought 8 corporate FCPA enforcement actions.

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Five Years Later, Bilfinger Emerges From DPA – Transparency Nil

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As highlighted in this previous post, in 2013 Germany-based Bilfinger resolved a Foreign Corrupt Practices Act enforcement action concerning conduct in Nigeria by agreeing to pay approximately $32 million. The enforcement action was resolved via a three-year deferred prosecution agreement and the company was required to engage a monitor for an 18 month period.

In September 2016, the DPA was extended because, in the words of the DOJ, of “the monitor’s inability to certify compliance with the compliance obligations in the 2013 Agreement after 18 months of monitorship.” In pertinent part the extended DPA stated:

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Principal Deputy Assistant AG Cronan Delivers Yet Another FCPA Speech

Cronan

On October 18th, Principal Deputy Assistant Attorney General John Cronan delivered a speech in Brazil at an event hosted by a for-profit business that generally charges people to attend (see here for the prior post). On October 25th, Cronan delivered another speech in Washington, D.C. at another event hosted by the same for-profit business.

Why DOJ (and SEC) officials allows themselves to be used in such a way by profit-seeking businesses to drive attendance to their events is beyond me. (See prior posts here and here, among many others, for why the selling of FCPA enforcement attorneys needs to stop).

Ethics aside, in his speech Cronan talked about the DOJ’s priorities with respect to corporate enforcement, what the DOJ expects “from companies who choose to voluntarily self-disclose misconduct and seek to cooperate with law enforcement,” and the DOJ’s “commitment to reaching fair and equitable resolutions, including through the principles reflected in the Criminal Division’s policy with respect to monitors.”

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