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FCPA Books And Records Jury Instructions In A Criminal Action

By on May 8, 2023 in Books and Records, Jury Instructions, Knowledge, Willfull
juryinstructions

This recent post highlighted the criminal convictions of former ComEd executives and associates on all counts charged, including conspiring to influence and reward the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company, in addition to multiple bribery and record falsification charges. (See here for the DOJ release).

It was noted that bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues; however ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the most serious (from a sentencing and fine perspective) criminal charges the individuals were found guilty of were record falsification in violation of the FCPA.

Although outside the foreign bribery context, the individual convictions of FCPA books and records offenses is likely one of more high profile instances of criminal convictions of those provisions in the FCPA’s approximate 45 year history.

Set forth below are the relevant jury instructions issued by Judge Harry Leinenweber (N.D. Ill).

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Former ComEd Executives And Associates Convicted Of FCPA Offenses

By on May 4, 2023 in Anne Pramaggiore, Books and Records, ComEd, Internal Controls, Jay Doherty, John Hooker, Michael McClain, Non-FCPA FCPA Enforcement Actions
ComEd

Earlier this week, a federal jury in Chicago found four former Commonwealth Edison (“ComEd”) executives and associates guilty on all counts charged, including conspiring to influence and reward the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company, in addition to multiple bribery and record falsification charges. (See here for the DOJ release).

Bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues.

However, ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the FCPA has always been a law much broader than its name suggests because of the FCPA’s books and records and internal controls provisions.

Indeed, the most serious (from a sentencing and fine perspective) criminal charges the four individuals were found guilty of were record falsification in violation of the FCPA.

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A Further Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests

By on February 8, 2023 in Books and Records, Gentex, Internal Controls, Non-FCPA FCPA Enforcement Actions
gentex

This type of post has been published several times before (see here and here among other posts), and once again today, to highlight an important (yet often overlooked) aspect of the Foreign Corrupt Practices Act: the FCPA has always been a law much broader than its name suggests.

Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, let’s call these numerous enforcement actions non-FCPA, FCPA enforcement actions.

The latest example is this recent SEC enforcement action against Gentex (a Michigan based company that provides digital vision, connected car, dimmable glass, and fire protection products).

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The SEC’s Other Recent “FCPA” Enforcement Actions

By on October 4, 2022 in Accounting Industry, Barclays, Books and Records, Compass Minerals, Deloitte, Internal Audit Issues, Internal Controls, Non-FCPA FCPA Enforcement Actions, Tupperware
SEC

September 30th was the end of the SEC’s fiscal year – and like prior years – there was much enforcement activity in September. Just don’t call it “earnings management” – even though that is a term SEC Commissioner Hester Peirce has used to describe enforcement activity in September (see here).

Forty percentage of corporate SEC FCPA enforcement actions thus far in 2022 occurred during a 12-day period last month (see here and here) and this post highlights several other non-FCPA, FCPA enforcement actions (that is – enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions, yet have nothing to do with foreign bribery) from late September.

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Yet Another Non-FCPA, FCPA Enforcement Action

By on August 18, 2022 in Books and Records, Internal Controls, Non-FCPA FCPA Enforcement Actions
Eagle

Thus far this year, the SEC has brought three Foreign Corrupt Practices Act enforcement actions involving alleged foreign bribery.

In the last approximate two months, the SEC has brought at least three FCPA enforcement actions not involving foreign bribery.

Confused? Don’t be. The FCPA has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, the name non-FCPA, FCPA enforcement actions has long been used on this site.

The latest example is this recent SEC enforcement action against Eagle Bancorp, Inc.

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