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Friday Roundup

Roundup

Ironic, scrutiny update, and for the reading stack. It’s all here in the Friday roundup.

Ironic

As highlighted in this previous post, in February 2016 SAP (a German company with American Depository Shares registered with the SEC) resolved a $3.9 million FCPA enforcement action based on conduct in Panama and was ordered to cease and desist from committing or causing any violations and any future violations of the FCPA’s books and records and internal controls case.

Fresh off its 2016 FCPA enforcement action, SAP again became the subject of FCPA scrutiny. (See here for the prior post). Indeed, yesterday the Wall Street Journal reported:

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FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries

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As highlighted in this post, like prior years (see here) much of the largeness of 2017 FCPA enforcement resulted from corporate enforcement actions against foreign companies.

Specifically, of the 13 corporate enforcement actions from 2017, 5 (approximately 40%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets and in a few instances on sparse allegations of a U.S. nexus in furtherance of an alleged bribery scheme). Even more dramatic, of the net $1.13 billion FCPA settlement amounts from 2017 corporate enforcement actions, approximately 90% of this number was from enforcement actions against foreign companies.

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FCPA Flash Podcast – A Conversation With Bruce Yannett Regarding The Top Issues From 2017

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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 Bruce Yannett (Debevoise & Plimpton). Yannett has a wealth of experience in FCPA matters and among his many engagements was representing Siemens and Rolls Royce in connection with FCPA and related scrutiny.

During the podcast, Yannett identifies and elaborates on his list of the most notable issues from 2017: (i) the DOJ’s “FCPA Corporate Enforcement Policy” and implications for self-reporting;  (ii) international enforcement and the continuing rise of coordinated settlements; and (iii) the fallout from Kokesh v. SEC and how to balance SEC, DOJ and international enforcement and statutes of limitation.

 

“Non-U.S. Efforts To Prosecute Overseas Bribery Are Hampered By The Absence Of Clear, Credible Statements From U.S. Prosecutors”

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Frederick Davis (Debevoise & Plimpton) recently authored a dandy piece that nicely articulates a problem in the international fight against overseas corruption and that is: “non-U.S. efforts to prosecute overseas bribery are hampered by the absence of clear, credible statements from U.S. prosecutors that they will desist from prosecuting if a local prosecutor does so in good faith.”

Before highlighting Davis’s article, as previously highlighted on these pages U.S. enforcement of the Foreign Corrupt Practices Act against foreign companies from OECD Convention countries, often based on sparse / novel jurisdictional theories, presents a host of problems.  Indeed, the OECD Convention recognized this issue and states: “when more than one Party has jurisdiction over an alleged offence described in this Convention, the Parties involved shall, at the request of one of them, consult with a view to determining the most appropriate jurisdiction for prosecution.”

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DOJ Is Noncommittal Regarding The Future Of Its FCPA Pilot Program, But Who Really Cares?

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On April 5, 2016, the DOJ announced a one-year FCPA Pilot Program (see here for the prior post).

With just a few weeks left in the program, the DOJ could easily make an emphatic statement about the future of the program.

But that is not what Acting Assistant Attorney General Kenneth Blanco did last week in a speech at the ABA National Institute on White Collar Crime.

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