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Friday Roundup

Roundup

Clayton responds, from the dockets, Bitkower to FCPA Inc., and a student writing competition. It’s all here in the Friday roundup.

Clayton Responds

This previous post highlighted the FCPA portion of the recent confirmation hearing of SEC Chair nominee Jay Clayton. In follow-up written questions, Senator Sherrod Brown (D-OH) asked: “The Foreign Corrupt Practices Act (FCPA) forbids U.S. companies and their subsidiaries from paying foreign government officials to obtain or retain business. What is your specific plan for enforcement of the FCPA.”

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Friday Roundup

Roundup

Scrutiny alerts and updates, ripples, difficult business conditions, resource alerts, and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

Wal-Mart

Bloomberg reports:

“Wal-Mart Stores Inc. is butting heads with the U.S. government over how to wrap up a long-running foreign corruption investigation. Officials have proposed that the world’s biggest retailer pay at least $600 million to resolve probes by the Justice Department and the Securities and Exchange Commission into whether it bribed government officials in markets from Mexico to India and China, according to three people familiar with the matter. The retailer has rebuffed the government’s request, two of them said.

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The DOJ’s Latest Position Regarding The Siemens Monitor Report Is Laughable

Laughable

Rather than just prosecuting alleged Foreign Corrupt Practices Act violations, the Department of Justice (presumably) wants business organizations to adopt compliance best practices.

In resolving the record-setting Siemens FCPA enforcement, the DOJ complimented Siemens on its remedial measures, stating in this sentencing memorandum that the company “set a high standard for multi-national companies to follow.”

Yet, in a recent filing in a case seeking release of the Siemens monitor report, the DOJ advances a laughable position.

That position – as articulated by the DOJ in seeking to block release of the monitor report – is that “disclosure of confidential information about Siemens’ compliance programs would provide a free roadmap as to what works in international commerce without violating the FCPA and other anti-corruption laws, what activities to avoid, how build an effective compliance program and system of internal controls, etc.”

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Appearances Matter – President Obama Hobnobs With Siemens Executives Who Provide Him Something of Value

Barack Obama bekam bei seinem Besuch am Siemens-Stand von CEO Joe Kaeser einen Golfschläger geschenkt. "Jetzt kann ich Angela beibringen, wie man Golf spielt", scherzte der US-Präsident.

Barack Obama received a golf club as a give-away from CEO Joe Kaeser while visiting the Siemens booth. "Now I am going to teach Angela how to play," the president joked.

Granted, it happened in late 2008.

The “it” is the Siemens Foreign Corrupt Practices Act enforcement action in which the U.S. government stated, among other things, that “for much of its operations across the globe, bribery was nothing less than standard operating procedure for Siemens” and that the “pattern of bribery by Siemens was unprecedented in scale and geographic reach.”

According to the U.S. government, Siemens’ conduct was “egregious,” “staggering,” “brazen,” and “systematic;” and that there existed a “corporate culture in which bribery was tolerated and even rewarded at the highest levels of the company.”

In 2008, Siemens resolved parallel DOJ/SEC FCPA enforcement actions by agreeing to pay $800 million (still the largest FCPA settlement amount of all-time – see here for the current top ten list).

Although approximately 7.5 years have passed since 2008, the Siemens FCPA enforcement action remains an active issue for the U.S. government. Indeed, as highlighted in this recent post, the DOJ is seeking to block release of the Siemens’ Monitor Reports.

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So Much For That Transparency Thing … DOJ Seeks To Block Release Of Siemens Monitor Reports

secret5

“Greater transparency benefits everyone.  The Criminal Division stands to benefit from being more transparent ..”

Assistant Attorney General Leslie Caldwell, April 15, 2015

Yet, time and time again, when the DOJ has an opportunity to be more transparent when it comes to Foreign Corrupt Practices Act enforcement, the DOJ circles the wagons and retreats behind speculative and specious legal arguments.

The latest example concerns the DOJ’s continued efforts to block public release of the Siemens’ monitor report, a condition of settlement from the still record-setting $800 million FCPA enforcement action against Siemens in 2008. The DOJ’s resistance is all the remarkable given that Siemens’ post-enforcement action monitorship ended long ago and the case is no longer active.

This post highlights the DOJ’s arguments in this recently filed brief in which the DOJ (along with Siemens and its monitor) is opposing public release of the Monitor reports.

As highlighted in this recent post, in a similar (albeit not FCPA) setting,  U.S. District Court Judge John Gleeson (E.D.N.Y.) recently ordered the HSBC monitor report to be released.

Let’s hope that U.S. District Judge Rudolph Contreras (D.D.C.) to whom the Siemens case is assigned, like Judge Gleeson, champions transparency and does not acquiesce in secret criminal law enforcement.

Moreover, from a policy matter the DOJ should want the Siemens monitor report in the public domain as it would be a valuable educational resource for corporate counsel and compliance professionals on a variety of topics. This is particularly true because in its 2008 sentencing memorandum the DOJ complimented Siemens remedial measures and stated that the company “set a high standard for multi-national companies to follow.”

It strains credibility for the DOJ to now want the specifics of this “high standard for multi-national companies to follow” shielded from public disclosure.

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