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… Because FCPA Enforcement Actions Often Involve “Normal” Activity

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This recent FCPA Blog post asks: “why do ‘normal’ employees violate the FCPA?”

Sure, there will always be Foreign Corrupt Practices Act violators like Richard Bistrong (an FCPA Blog contributor and a “training partner” of the FCPA Blog’s owner) who – in the words of the Africa Sting jury foreman – “freely admitted on the stand more illegal acts than the entire group of defendants was accused of, yet was able to plead to only one count of conspiracy to violate the FCPA.” Bistrong himself has stated: “When I am asked, ‘what could have stopped you? My response is quite simple: nothing.”

There is little compliance programs can do as to these sorts of actors. Nevertheless, let me raise my hand and offer a partial answer to the question posed by the FCPA Blog: “normal” employees may violate the FCPA because FCPA enforcement actions often involve “normal” activity.

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This Week On FCPA Professor

ThisWeekPost

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor.

As highlighted here, in a recent Fourth Circuit decision the court agreed with Walmart on privilege issues relevant to an FCPA inquiry.

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FCPA Challenge

FCPA Challenge

How much do you know about the Foreign Corrupt Practices Act? Let’s find out.

To commemorate the FCPA’s 40th year, FCPA Professor is presenting the FCPA Challenge.

Each Thursday during 2018, a question will be posed and the answer will be below the fold.

This week’s question is: In this 2010 enforcement action, the SEC acknowledged that expatriate workers of a company’s subsidiary in Kazakhstan were the victims of extortionate demands by Kazakhstan officials, specifically that Kazakh immigration prosecutors “threatened to fine, jail or deport the workers if [subsidiary] did not pay cash fines.” “Believing the prosecutor’s threats to be genuine,” the SEC complaint alleged that [subsidiary] employees “used personal funds to pay the prosecutors” and “then obtained reimbursement” from the company. According to the SEC, [the company] violated the FCPA’s books and records and internal control provisions because its subsidiary described the reimbursements as “an advance against bonus” or “payroll advance” in its wire instructions to the bank.

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It All Depends On What The “B” Word Means

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Often times, discussion of complex legal or public policy issues is clouded by simplistic rhetoric and narrative spinning.

Just don’t bribe. A zero tolerance for bribery.

Sound good and to be sure in certain Foreign Corrupt Practices Act enforcement actions the simplistic rhetoric and narrative is actually true. For instance, Siemens had a “corporate culture in which bribery was tolerated and even rewarded at the highest levels of the company.” Odebrech/Braskem maintained a business unit that allegedly “served as little more than a bribe-paying department for the benefit of Odebrecht and Braskem.”

Yet in many other FCPA enforcement actions – and the FCPA compliance discussion generally – cliches like “just don’t bribe” and a “zero tolerance for bribery” are overly simplistic because it all depends on what the “b” word means.

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This Week On FCPA Professor

ThisWeekPost

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor.

The SEC (like the DOJ) often talks about the importance of individual FCPA enforcement actions. However, as highlighted in this post it’s been over a year since the SEC has brought an individual FCPA enforcement action. More broadly, since 2016 the SEC has brought 13 corporate enforcement actions and just 1 (7%) involved related SEC charges against a company employee.

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