Whatever Happened To The Narrative That COVID Would Increase FCPA Scrutiny And Enforcement?
There are some narratives in the Foreign Corrupt Practices Act space that seem to take on a life of their own without a factual basis (see here, here and here for instance).
Six years ago, the early stages of COVID began.
The narrative seemed to be that COVID was going to increase FCPA scrutiny and thus enforcement because a crisis like COVID presented desperate times for certain companies and thus perhaps an opportunity to skimp on companies and/or a willingness to secure business improperly.
“This Is Wrong” And “Callous” – CFTC Commissioner Unleashes On Enforcement Action Based On Record Keeping Issues During The Height Of Covid
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.
MTS DPA And Monitorship Extended
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:
In The Words Of The Enforcement Officials
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.
Friday 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.