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DOJ’s McFadden And Sessions Nicely Articulate The Policy Rationale For An FCPA Compliance Defense

May 24, 2017

As highlighted in the article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” the value and efficacy of an FCPA compliance defense is not just limited to more just and fair results when it comes to “hard enforcement” of the FCPA by the DOJ and SEC.

More importantly, an FCPA compliance defense will also increase “soft enforcement” of the FCPA. Soft enforcement generally refers to a law’s ability to facilitate self-policing and compliance to a greater degree than can be accomplished through “hard” enforcement alone.

Stated differently, the goal of the FCPA is to prevent bribery of foreign officials and that goal is best accomplished not solely through ad hoc “hard” enforcement actions, but by also better incentivizing corporate compliance designed to prevent improper conduct. Numerous prior posts (here, here, herehere, here, here, here, here, here, here, here) have highlighted this dynamic including how the DOJ has long recognized the importance of “soft enforcement” of the FCPA.

In recent speeches, DOJ Deputy Attorney General Trevor McFadden (as well as Attorney General Jeff Sessions) nicely articulated the policy rationale for an FCPA compliance defense. However, actions speak louder than words and the DOJ (and SEC) have continually failed to support the best positive incentivize to maximize “soft” enforcement of the FCPA.

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New Article – “The FCPA’s Record-Breaking Year”

May 23, 2017

Each year, in addition to numerous posts published on FCPA Professor, I author a more comprehensive Foreign Corrupt Practices Act year in review / recent developments article that is published by a law review or journal.

This publication process typically moves at a snail’s pace, but just because the calendar says May doesn’t mean it’s too late to learn about the top FCPA events and issues from the prior year.

2016 was a record-breaking year for FCPA enforcement. A new article “The FCPA’s Record-Breaking Year” (forthcoming in the Connecticut Law Review – click here to download) provides a detailed analysis of the most notable FCPA enforcement and policy developments from 2016 and will be value to anyone seeking to elevate their FCPA knowledge.

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June 13th Toronto Event – What Canadian Companies Need to Know About Effective Compliance with Canadian, U.S. and Global Anti-Corruption Laws

May 23, 2017

Bennett Jones LLP is pleased to present Professor Mike Koehler together with Bennett Jones Partner, Milos Barutciski, for a unique and practical learning experience. This full-day interactive course will: elevate your substantive knowledge of bribery and corruption laws; enhance your skills in identifying and responding to corruption and bribe solicitation; and help you adapt compliance best practices to your business.

CPD Credit Information: This program contains 7 hours of Substantive Content and 1 hour of Professionalism Content. To learn more and register, click here.

Internal Investigations: A Challenging Decision By The English Courts

May 22, 2017

A guest post today from White & Case attorneys Jonathan Pickworth, Alex Davey and Mhairi Fraser.

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In recent years the UK Serious Fraud Office (SFO) has been making aggressive statements regarding assertions of legal professional privilege by corporates and has launched two significant legal cases in this area.

The first of these challenges occurred in the criminal courts regarding the Barclays Qatar investigation, which saw Barclays eventually partially waive privilege and provide the SFO with the documents requested, rather than having an acrimonious court battle on the topic – something the SFO was prepared to do. The second was a civil test case, instigated by the SFO in the UK High Court, to challenge assertions of privilege in the case of The Serious Fraud Office v ENRC.

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Checking In On Wal-Mart’s Pre-Enforcement Action Professional Fees And Compliance Enhancements

May 20, 2017

In its recent 1Q FY2018 earnings call presentation Wal-Mart disclosed $16 million in Foreign Corrupt Practices Act and compliance related expenses ($13 million for ongoing investigations and inquiries and $3 million for global compliance program and organizational enhancements). The Q1 expenses of $16 million compare to the following quarterly expenses in FY2017 (Q4 $17 million, Q3 $29 million, Q2 $ 28 million, Q1 $25 million).

Doing the math, Wal-Mart’s 1Q FY2018 FCPA and compliance-related costs is approximately $260,000 per working day.

Over the past 5 years, I have tracked Wal-Mart’s quarterly disclosed pre-enforcement action professional fees and expenses. While some pundits ridiculed me for doing so, it quickly caught on as the popular thing to do.

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