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“This Is Wrong” And “Callous” – CFTC Commissioner Unleashes On Enforcement Action Based On Record Keeping Issues During The Height Of Covid

Pham

This post has little to do with the Foreign Corrupt Practices Act specifically.

However, during the early months of Covid in Spring 2020, this post highlighted how the standard in the FCPA’s internal controls (and books and records) provisions is “reasonable” and that “reasonable” (a term used throughout the law) contemplates a variety of factors including the circumstances in which conduct occurs.

Given that FCPA scrutiny tends to last 4 years on average – and given that conduct giving rise to FCPA scrutiny tends to be up to 5-10 years old – this site has more than once “wondered” how FCPA internal control and/or books and records “deficiencies” will be viewed in future FCPA enforcement actions for the general time period March 2020 – 2021 (or perhaps even 2022).

If this recent Commodities Futures Trading Commission (CFTC) enforcement action against Goldman Sachs is any indication, the answer is the government may not care about the real-world conditions during that time period.

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MTS DPA And Monitorship Extended

mts

As highlighted in this prior post, in 2019 Russia-based Mobile TeleSystems PJSC (MTS) agreed to resolve an $850 million DOJ/SEC FCPA enforcement action based on the same alleged core conduct in several other Uzbekistan telecom focused FCPA enforcement actions. (See here and here).

As a condition of settlement, MTS was required to retain an independent compliance monitor.

The company recently disclosed:

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In The Words Of The Enforcement Officials

Soapbox

Even though DOJ and SEC enforcement officials clearly have the ability (through various technology means) to convey information relevant to the Foreign Corrupt Practices Act to a broad audience, enforcement officials continue to appear at conferences hosted by for profit companies in which audience members need to pay to hear our public officials speak. (See here).

So long as this concerning dynamic persists, the FCPA community is served by practitioners performing a valuable public service by summarizing remarks of enforcement agency officials.

Today’s post is from Arnold & Porters attorneys Jonathan Green, Ryan Hartman, and Dan Bernstein.

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Friday Roundup

Roundup

Under scrutiny again, guilty plea, and for your listening enjoyment.

It’s all here in the Friday roundup.

Under Scrutiny Again

As highlighted in this prior post, in 2019 Russia-based Mobile TeleSystems PJSC (MTS) agreed to resolve an $850 million DOJ/SEC FCPA enforcement action based on the same alleged core conduct in several other Uzbekistan telecom focused FCPA enforcement actions. (See here and here). As a condition of settlement, MTS was required to retain an independent compliance monitor.

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Providing Something Of A Value Directly To A Foreign Government Is Not Necessarily An FCPA Issue

not so fast

This recent Wall Street Journal article titled “Miners Try to Get Covid 19 Vaccines Into Areas Where Shots Are Scarce” highlights how various mining companies are spending millions of dollars to support COVID-19 vaccination efforts in countries in which they do business including “offering support to local governments during the pandemic, from conducting screening and mobile testing to donating extra beds for hospitals and clinics.”

Examples of good corporate citizenship or decisions made to advance a business interest?

After all, as stated in the article “by helping governments administer the shots, many companies hope they can rapidly rescale production depressed by the pandemic …”.  As one mining executive stated in the article: “For us to operate efficiently and smoothly, we need to minimize the disruptions due to things like lockdown. Being part of a vaccination program makes complete business sense.”

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