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This Week On FCPA Professor

September 18, 2021

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.

This post offers various statistics and thoughts regarding corporate FCPA repeat offenders.

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I’ll Drink To That (A Coffee Of Course)

September 17, 2021

In 2010, I published an article titled “The Facade of FCPA Enforcement.”

This article discussed various pillars that contribute to the facade of FCPA enforcement and highlighted that the FCPA, during its decade of resurgence, was being enforced like no other law. This article did not argue, or even suggest, that every FCPA enforcement action is unwarranted or that no company or individual has never violated the FCPA. Rather, the article demonstrated that a significant majority of FCPA enforcement actions are a facade” including those that allege clear instances of corporate bribery” yet are resolved without FCPA anti-bribery charges.

According to this site, it is one of the most read articles specifically about the Foreign Corrupt Practices Act.

A decade later, I happy to see that others still notice the article and have continued to expose the facade of FCPA enforcement.

For instance, Joshua Ray (a London-based Partner at Rahman Ravelli Solicitors who leads the Firm’s U.S.-facing business crime practice group) recently published this article titled “The Continuing Facade of FCPA Enforcement: A Critical Look at the Telia DPA.” Of note, Ray serves as defense counsel for Bekhzod Akhmedov in connection with criminal charges filed against him in 2019 related to the Telia FCPA enforcement action (see here for the prior post).

Set forth below is a summary of Ray’s article.

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Cognizant’s $95 Million Ripple

September 16, 2021

Foreign Corrupt Practices Act settlement amounts are one obvious consequence of alleged FCPA non-compliance and tend to generate the most headlines.

However, as has been discussed on these pages for years  including in this article “FCPA Ripples”, settlement amounts are only one consequence of the overall financial ramifications of FCPA scrutiny and enforcement.

As highlighted in this prior post, in early 2019 Cognizant Technology Solutions, without admitting or denying the SEC’s findings, resolved a $25 million SEC enforcement action in connection with various licenses and permits in India. To get to that point, the company spent approximately $75 million in pre-enforcement action professional fees and expenses. (See here).

Like many instances of FCPA scrutiny and enforcement, Cognizant was also hit with a variety of civil lawsuits by shareholders. (See here).

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Interesting Causation Decision

September 15, 2021

One of the most challenging issues to pin down in many legal and policy discussions is causation.

When thinking of causation, we often fall for the fallacy of post hoc ergo propter hoc (in other words, since event Y followed event X, event Y must have been caused by event X).

However, real life is often more complex and this is also true in many Foreign Corrupt Practices Act enforcement actions.

For instance, can it really be said that the “only” reason a company got business was because an employee or agent treated a customer to a round of golf or offered tickets to a sporting event? Perhaps it was mostly because the company offered the best product for the best price? Asking the question is not justifying the underlying conduct (although there is nothing inherently wrong with golfing or going to sporting events), it is simply taking a broader (much needed) view of the underlying facts and circumstances.

Against this backdrop, it is worthwhile to analyze this recent federal court decision concerning a high-profile instance of domestic bribery.

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FCPA Institute – Zoom (Oct. 27-29)

September 14, 2021

Since 2014, the FCPA Institute has elevated the Foreign Corrupt Practices Act knowledge and practical skills of hundreds of professionals from around the world. In the current COVID environment, the traditional two-day in-person FCPA Institute is still not yet feasible.

However, there remains a need for FCPA knowledge and skill development. After the inaugural FCPA Institute – Zoom was offered in November 2020 to a worldwide audience, and another in April 2021 to a worldwide audience, I am pleased to offer another FCPA Institute – Zoom on October 27-29th. The FCPA Institute – Zoom will consist of 9 hours of integrated and cohesive instruction (each day from 8 a.m. – 11 a.m. central) led by Professor Koehler, an FCPA expert with FCPA practice and teaching experience.

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