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FCPA Flash Podcast – A Conversation With Philip Urofsky Regarding 2018 FCPA Trends And Developments

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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 Philip Urofsky (Shearman & Sterling and a former FCPA enforcement official at the DOJ). During the podcast, Urofsky elaborates on various issues such as jurisdiction over foreign actors and parent-subsidiary issues found in the firm’s always informative FCPA Digest. Urofsky also opines on what the FCPA enforcement landscape might look like if business organizations would put the government to its burden of proof in enforcement actions.

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Issues To Consider From The United Technologies Enforcement Action

Issues

This prior post went in-depth into the SEC’s $13.9 million Foreign Corrupt Practices Act enforcement action against United Technologies Corp. and this post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this prior post, UTC’s FCPA scrutiny began in late 2013/early 2014. Thus, from start to finish its scrutiny lasted approximately 4.5 years.

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Issues To Consider From The CDM Smith Enforcement Action

Issues

This previous post highlighted the DOJ’s recent Foreign Corrupt Practices Act enforcement action against CDM Smith Inc. Pursuant to a so-called “declination” with disgorgement, CDM Smith agreed to disgorge approximately $4 million based on DOJ findings “that CDM Smith, through its employees and agents, and those of its wholly owned subsidiary in India paid approximately $1.18 million in bribes to government officials in India in exchange for highway construction supervision and design contracts and a water project contract…”.

This post highlights additional issues to consider.

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The SEC’s Recent Alter Ego Theories

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In addition to teaching a Foreign Corrupt Practices Act class (one of the few specific FCPA classes taught in U.S. law schools), in my professor life I also teach a variety of corporate law classes, including Corporations in which coverage includes corporate form, the general rule of limited liability, and exceptions to that general rule based on veil piercing / alter ego theories.

The general rule is that legal liability does not ordinarily hop-skip-and-jump around a corporate organization because separate legal entities (including even those within the same corporate hierarchy) are not liable for the legal liability of other entities (whether that liability arises in tort, contract or the FCPA).

However, if one entity is merely the “alter ego” of another entity, the other entity may be exposed to legal liability based on the conduct of the “alter ego.” The picture at left can demonstrate alter ego issues, namely that one entity will be the alter ego of another if the entities share the same heart, organs, nervous system, etc.

Against this backdrop, it is interesting to see how the SEC asserted alter ego theories in two recent FCPA enforcement actions.

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