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Potpourri

Potpourri

[To the best of my recollection, my first introduction to the word “potpourri” was in watching Jeopardy which I was very fond of as a teenager and young adult. Rest in peace Alex Trebek]

Lingo

Daniel Kahn (Acting Chief of the DOJ Fraud Section) was the guest on this recent episode of the Compliance Perspectives Podcast. During the podcast, Kahn talks about COVID’s impact on DOJ enforcement and certain recent enforcement actions such as Goldman Sachs and Beam.

In terms of the DOJ’s mid-2000 revision to its “Evaluation of Corporate Compliance Programs” policy document, Kahn stated that it certainly is by no means a “game changer.” Call me old-fashioned, but I want to hear the DOJ Fraud Section Chief talk about the law and legal requirements not lingo. Yet, the podcast dishes up plenty of lingo (tone at the top, conduct at the top, tone of upper and middle management, empowering compliance, walking the walk, direct line to the board, dotted line to the board, etc.).

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SNC-Lavalin Pleads Guilty In Canada’s Most Significant Foreign Corruption Case To Date

snc

Numerous prior posts dating back to 2012 (see here for the subject matter tag) have discussed SNC-Lavalin Group’s (a Montreal-based engineering, procurement and construction services company) scrutiny under Canada’s FCPA-like law, the Corruption of Foreign Public Officials Act (CFPOA).

After years of pouting that it was not being treated fairly (see here among other posts), SNC-Lavalin recently resolved a $280 million CFPOA enforcement action.

The below guest post from McCarthy Tetrault attorneys John Boscariol, Andrew Matheson and Robert Glasgow summarizes the enforcement action and its broader implications.

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Issues To Consider From The Westport Fuel Systems Enforcement Action

Issues

This prior post highlighted the SEC’s recent $4 million Foreign Corrupt Practices Act enforcement action against Westport Fuel Systems and a former executive officer (Nancy Gougarty). This post continues the analysis by highlighting additional issues to consider.

Just the Third

Westport Fuel Systems is a Canadian company with shares listed on a U.S. exchange. The enforcement action is believed to be just the third enforcement action in the FCPA’s 40+ year history against a Canadian company. The first enforcement action against a Canadian company was Nordion (2016 – see here and here for prior posts). The second enforcement action against a Canadian company was Kinross Gold (2018 – see here and here for prior posts).

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Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

Judicial Decision

This 2014 post highlighted Canadian charges against Robert Barra and Shailesh Govindia (individuals previously associated with Cryptometrics) for bribing Indian officials including those associated with Air India.

As highlighted in the below post, a Canadian court recently concluded that violations under Canada’s FCPA-like law – the Corruption of Foreign Public Officials Act (CFPOA) – are a specific intent offense and that Barra did not know the individual he allegedly bribed was a “foreign public official.”

As further highlighted below, the Canadian court’s specific intent ruling conflicts with certain FCPA jurisprudence while the Canadian court’s ruling regarding knowledge of the status of a “foreign public official” ruling is consistent with certain U.S. jurisprudence – namely U.S. v. Carson – in which the court issued a “knowledge of status of foreign official” jury instruction prior to trial. (See here).

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Canada’s OECD Article 5 Moment

Canada2

Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions states: “Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

As highlighted here and prior posts here and here, OECD Convention signatory countries such as the United States and the United Kingdom have seemingly violated Article 5 in connection with certain enforcement actions, so it is not surprising that Canada (also a signatory country) is also having an Article 5 moment.

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