Politically-Speaking Is The FCPA Doomed In The Next Five To Seven Years?
Today’s post is from is Rajat Soni who recently started a new website FCPA World Monitor. If you do not currently read FCPA World Monitor you should consider adding it to your list. Soni has a nice style and an informed perspective on the issues.
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Politically-Speaking is the FCPA Doomed in the Next Five to Seven Years?
One of the best aspects of studying and writing about the FCPA is the large amount of thoughtful scholarship examining the various twists and turns in the statute. Given its open-ended use of terms like “foreign official”, “instrumentality” and “obtain or retain business” the FCPA has always been fertile ground for statutory stargazers and those seeking law review article topics. Indeed, a ready source of information comes from the wide body of legal scholarship providing up to the minute assessments of cases and investigations with an eye toward predicting (or perhaps astrologically guessing) the future course of litigation.
A funny feature of the academic scholarship (and law firm newsletters) is that almost every article begins with a recitation of the history of the statute. I suppose its great for the newly initiated and it can also be interesting when pondering specific issues. But for regular commentators and practitioners, the introduction to the statute almost feels as well-known and predictable as the preamble of the Constitution. To wit: (i) the statute was born out of a corollary to the Watergate scandal, (ii) Congress was appalled that hundreds of companies were paying millions of dollars of bribes and doing so via off-the-books slush funds, (iii) Congress was concerned in particular about Lockheed Martin which was receiving corporate welfare assistance at the same time it was paying foreign bribes.
I’ve read various iterations of the phrase “Watergate inspired statute” lines in literally dozens of articles. But then I stopped for a moment and thought about the historic and literally unprecedented times out of which the FCPA was born. Watergate is so cliched and barren of meaning today that its hard to remember it was a real event. Well maybe “full-blown constitutional crisis” is a better term. It has no equal in historical precedent in the last forty years (sorry, Whitewater land deals don’t cut it.) So I was playing a bit of a thought game as I perused the various political blogs lately. Can you imagine the current Congress passing the FCPA? I laughed when I thought about it. They can’t pass a budget, a debt ceiling extension or even routine funding bills. There is absolutely, positively no way today’s Congress would ever pass the FCPA, given the strength of the business lobby (such as the Chamber of Commerce and ALEC, although the latter is focused on state legislatures), the current economic malaise, and the general inability to move any legislation.
Following Citizens United, the very targets of the FCPA, large multi-national corporations, can now donate unlimited funds. Who do you think Charles and David Koch think should decide whether a bribe is paid: the free market or prosecutors? I have a guess. Before we get too far along, your politics can be whatever you want them to be. I am not here to argue pro or against one party or the other. I am simply asking, is the statute really that safe looking at politics as it is today. There are many people on both sides of the aisle who are troubled by the FCPA regime as it is today. And Democrats can be as corporation-friendly as Republicans.
Today’s Republicans, which are more in line with Barry Goldwater, really love corporations and really hate perceived government overreach (particularly if it is aimed corporations). I have a hard time seeing today’s politicians rejecting the common business position at the time the FCPA was being debated that businesses paying bribes were already victims because they are coerced into going along with the schemes. I also think Republicans are more open to blaming the corrupt foreign countries and their toxic political and business environments, rather than the corporations themselves. For example, who do you think Republicans would like to punish more for FCPA violations in China: errant US companies or the Chinese? Right now, the FCPA punishes the companies quite severely.
So when will the FCPA erode? If you play political guessing games, you can still come up with the same 5 to 7 year timeline. Let’s assume President Obama wins reelection (whether or not you support him). In that case, Congress will most likely continue to tip to the GOP (even the Senate could fall in 2014). Republicans will be motivated to continue holding Congress to keep a check on a Democratic White House. This means Congressional committees will be run by the GOP. With GOP committees friendly to business interests, I would be utterly unsurprised to see FCPA reform become a key business issue. Indeed, if the reform is framed as eliminating the punishment of US companies abroad while also curtailing “business uncertainty” it will fit within a broader GOP narrative, especially as our inevitably anemic recovery continues to putter along.
If President Romney takes office in January 2013, and Congress holds in its current configuration, two things will happen. First, President Romney will just shut down the vigorous FCPA enforcement regime in the DOJ and SEC. Since so much of the FCPA’s teeth is simply the government’s enforcement posture, FCPA enforcement may simply die by neglect. Marching orders will change drastically as President Romney certainly won’t tolerate the DOJ hauling CEOs to the dock. Second, if the GOP holds the House, tips the Senate and gets the White House, the statute could be amended and have additional defenses added, narrowed definitions, and perhaps even smaller penalties. One final point, if Romney loses, then a GOP-led White House is almost assured for 2016. The race will be wide-open but the nation will be ready to flip the Oval Office to the party out of power, and Republicans will be highly motivated to take back the executive branch. In which case, the same curtailment discussed here will occur in 2017 instead of 2013.
In conclusion, right now it is common and accepted wisdom to say that FCPA enforcement is vigorous and getting even more so. But that’s part of the sales pitch for FCPA, Inc. I’m not saying that there isn’t truth or hard numbers to back the claims. Rather, law firms, forensic firms, discovery consultants and accountants do themselves no particular good to downplay the FCPA. But remember that Watergate was a political earthquake in America. The GOP was literally at its weakest and most humbled point in the last seventy years. It is in this environment that the statute took flight. In that sense, the FCPA probably could not have been born at any other time, and certainly not today (like it’s transatlantic cousin the UK Bribery Act.)
Again, it doesn’t really matter if you are a Republican or Democrat or Independent. More likely than not, in the near future, the FCPA is going to become one more political football tossed about between the parties. That means its robust future is not as certain as it might seem today.
Friday Roundup
I didn’t think so, China SOE developments, additional material for the reading pile, and the best part of the Olympics starting. It’s all here in the Friday roundup.
I Didn’t Think So
Will tinkering with advisory guidelines that are only implicated when a business organization pleads guilty to or is convicted of a crime best incentivize FCPA compliance, best advance the FCPA’s objective or reducing bribery, increase public confidence in FCPA enforcement actions and allow the DOJ to better allocate its limited prosecutorial resources to cases involving corrupt business organizations and the individuals who actually engaged in the improper conduct?
I didn’t think so, but see here for a recent post on Corruption, Crime and Compliance by Michael Volkov.
What will better achieve each of the above desirable objectives? See here for my scholarship “Revisiting a Foreign Corrupt Practices Act Compliance Defense.”
China SOE Developments
Probably one of the most unhelpful statements ever made by an enforcement official concerning the “foreign official” / “instrumentality” issue was when SEC Chairman Mary Schapiro stated (see here for the prior post) that “given the various forms of government found around the world, it would be impractical to articulate each of the myriad of ways that one could use to identify a foreign official in particular countries or cultures.” Two developments this week concerning China SOEs reminded me of Schapiro’s statement.
First, as numerous financial publication headlines indicated, China’s state-owned Cnooc Ltd. announced a $15.1 billion takeover offer for Canada-based Nexen Inc. Should the transaction close, the acquisition would give Cnooc “operational control of a significant Canadian oil-sands field operator” and “catapult it into the driver’s seat in some of the Western world’s richest frontiers, from the U.S. Gulf of Mexico to the North Sea.” (See here for the WSJ article).
Second, earlier this week China Investment Corporation released its annual report (here). Notably, the annual report begins as follows. “In 2011, China Investment Corporation continued to invest on a commercial basis to seek long-term returns and prudently manage our fully deployed portfolio.” (emphasis added). The annual report highlights direct investments in Canada, the U.K., France, Russia, Trinidad & Tobago, Brazil, South Africa, Vietnam and Australia.
For the Reading Pile
If this recent Summer Reading Spectacular post wasn’t enough to quench your thirst for FCPA information, there is more.
This recent FCPA Update from Debevoise & Plimpton contains a timely article in the aftermath of the dramatic collapse of the Africa Sting cases and the Lindsey Manufacturing prosecutions titled “The Difficulty of Recovering Damages From the Government When an FCPA Prosecution Misfires: Sovereign and Official Immunity and Their Impact on FCPA Compliance.” The conclusion states as follows. “Although success in an FCPA litigation is obviously a relief for corporate and individual defendants, FCPA defendants face enormous obstacles when it comes to recovering the significant costs associated with defending themselves against government enforcement actions.”
Arnold & Porter recently published this “FCPA, Bribery Act & Other Global AntiCorruption Insights.” The comprehensive nearly 50 page document contains key enforcement and investigative developments, global enforcement and investigative developments, as well as a focus on FCPA reform.
Olympics
The best part of Olympics starting?
No more client alerts, marketing material, etc. warning of the Bribery Act / FCPA risks of entertaining clients or prospective clients at the Olympics.
Keep an eye out for the Rio Tinto sponsored Mongolian Olympic team (see here for the prior post).
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A good weekend to all.
Morgan Stanley’s So-Called “Declination”
This past spring, FCPA Inc. was abuzz when, in the context of the Garth Peterson individual enforcement action (see here for the prior post), the DOJ publicly stated it declined to prosecute Peterson’s employer, Morgan Stanley.
Specifically, in its release (here), the DOJ stated as follows. “After considering all the available facts and circumstances, including that Morgan Stanley constructed and maintained a system of internal controls, which provided reasonable assurances that its employees were not bribing government officials, the Department of Justice declined to bring any enforcement action against Morgan Stanley related to Peterson’s conduct. The company voluntarily disclosed this matter and has cooperated throughout the department’s investigation.”
In this update, Arent Fox noted that the development “shows the government is ready to give a corporation credit for ‘adequate procedures’ in evaluating any potential FCPA violation.” The authors concluded that “only time will tell whether [the DOJ’s actions] reflect the government’s adoption of a de facto ‘adequate procedures’ defense to FCPA violations.”
In this client memo, Willkie Farr stated as follows. “While the government charged the former managing director with FCPA violations, the government notably declined to charge the firm, Morgan Stanley, with any wrongdoing due in large part to the company’s established system of internal controls and its continued efforts to enforce its anticorruption policies among company employees, including the individual who was charged in the government’s civil and criminal cases.”
Let’s pause for a moment and consider what the term declination means in the FCPA context.
In talking to others, I know that there is a range of opinions on this issue, but here is my definition of declination – an instance in which the DOJ has concluded it can prove beyond a reasonable doubt all the necessary elements of a cause of action, yet decides not to pursue the action.
With this definition in mind, was the DOJ’s decision not to prosecute Morgan Stanley based on Peterson’s conduct truly a declination?
Let’s start by analyzing certain relevant allegations made by the DOJ in the Peterson information (here) which involved a real estate investment scheme with Chinese Official 1.
According to the information, “Peterson and Chinese Official 1 had a close personal relationship before Peterson joined Morgan Stanley.”
According to the information, a shell company (Asiasphere Holdings Limited) used to facilitate the scheme was owned 47% by Chinese Official 1 and 53% by Peterson and a Canadian Attorney.
According to the information, “without the knowledge or consent of his superiors at Morgan Stanley, Peterson sought to compensate Chinese Official 1”
According to the information, “Peterson concealed Chinese Official l’s personal investment [in certain properties] from Morgan Stanley.”
According to the information, “Peterson used Morgan Stanley’s past, extensive due diligence [as to certain of the investment properties] to benefit his own interests and to act contrary to Morgan Stanley’s interests.”
Consistent with these allegations, in the DOJ’s release Assistant Attorney General Lanny Breuer stated as follows. “Mr. Peterson admitted … that he actively sought to evade Morgan Stanley’s internal controls in an effort to enrich himself and a Chinese government official.”
Based on the above, was there even a basis to hold Morgan Stanley criminally accountable even under the lenient respondeat superior standards?
Like with most things in the corporate FCPA enforcement context, we will never know. However, if the answer is no, then the DOJ’s decision not to charge Morgan Stanley was not a declination, it was what the law commanded and it is a sorry state of affairs indeed to praise the DOJ for concluding what the law commands.
In this article, Steptoe & Johnson rightly stated as follows. “… [T]he element of personal benefit derived by Peterson from his conduct is likely significant. […] Such benefits call into question whether Peterson was really acting for the benefit of his employer, a key requirement for corporate vicarious liability. Moreover, it seems clear that the government believes Morgan Stanley was ultimately duped by its employee and entered into transactions in good faith, without knowledge of the personal benefits being derived, despite their controls.”
The timing of the DOJ’s first-ever publicly stated so-called declination is also noteworthy. As Larry Boyd (Executive Vice President, Secretary & General Counsel, Ingram Micro, Inc.) recently stated at this Chief Legal Officer Leadership forum – “If you’re of a cynical frame of mind like I am, though, I will tell you that I suspect that this announcement by the Justice Department had as much to do with the effort that the U.S. Chamber of Commerce has been mounting over the last 18 months to try to get Congress to amend the Foreign Corrupt Practices Act as it does with Morgan Stanley’s good conduct.”
Likewise, Steptoe & Johnson (in the article linked above) identified the same issue as follows. “[D]eclination was [possibly] motivated by the enforcement agencies’ desire to respond to entreaties from companies and business groups to demonstrate the value of compliance efforts. The Peterson case comes as the DOJ and SEC are drafting long-awaited public guidance on the statute, in the wake of concerns that the implementing regulations for the Dodd-Frank whistleblower provisions gave short shift to corporate compliance efforts.”
Friday Roundup
Out with the tide, a former DOJ Fraud Section Chief speaks on voluntary disclosure, guidance issues, will candy fall from the pinata, schooled in the FCPA, a Section 1504 development, and “Minegolia.”
Tidewater Derivative Complaint Dismissed
As highlighted in this previous post, in November 2010 Tidewater Inc. was one of several companies to resolve a “CustomsGate” case. The conduct at issue focused on Azeri tax officials and Nigerian temporary import permits and the company resolved DOJ and SEC enforcement actions by agreeing to pay $15.7 million in fines and penalties.
As if on cue in this new era of FCPA enforcement, along came the private plaintiff firms representing shareholders who filed a derivative complaint alleging that officers and members of the Board of Directors of Tidewater breached their fiduciary duties “in that they: (1) knew or recklessly disregarded the fact that employees, representatives, agents and/or contractors were paying, had paid and/or had offered to pay bribes to Azerbaijani and Nigerian government officials to obtain favorable treatment for Tidewater; (2) caused Tidewater to pay bribes and to disguise the bribe payments as legitimate expenses in Tidewater’s books and financial disclosures; and (3) failed to maintain adequate internal controls to ensure compliance with the FCPA and Exchange Act.”
Earlier this week, the case was swept out with the tide as U.S. District Court Judge Jane Triche Milazzo dismissed the complaint – see here for the decision. In short, Judge Milazzo found that “Plaintiff did not adequately plead demand futility.” Judge Milazzo utilized various tests in reaching her decision such as director interest and independence and whether the board could impartially consider the merits of the demand without being influenced by improper considerations.
As to interest, Judge Milazzo stated as follows.
“This Court finds that the Complaint is completely devoid of any allegations of an interested director. There is no allegation that any director appeared on both sides of a transaction or expected to derive a personal financial benefit from it. Nowhere in the Complaint can it be found that any one of the directors, much the less a majority of them, benefitted from the bribes themselves, benefitted from failing to establish and maintain adequate internal controls, benefitted from enforcing policies and programs designed to prevent violations, benefitted from improperly recorded payment of bribes in Tidewater’s books and records or benefitted from inadequately training their employees, agents, representatives and/or contractors with respect to compliance with the FCPA.”
As to alleged director participation or knowledge , Judge Milazzo stated that the “Complaint falls woefully short of pleading facts that are sufficient to show that there was any knowledge or conscious disregard on behalf of the directors.”
As to whether the directors exhibited bad faith sufficient to overcome business judgment rule presumptions, Judge Milazzo stated as follows. “While Plaintiff’s allegations are sufficient to show that Tidewater was evidently violating both the FCPA and the Exchange Act, nowhere in the Complaint do Plaintiff’s allegations meet the specificity to show that the Individual Defendants were acting with the intent to violate these laws. ‘[T]he mere fact that a violation occurred does not demonstrate that the board acted in bad faith. Alleging that ‘upon information and belief’ the ‘Headquarters’ made the decision to avoid tax assessments in violation of the FCPA falls woefully short of the pleading requirements. Nowhere can this Court find who made this decision, how this decision was made or that there was an intent to violate any law. Moreover, the Court finds it significant that Tidewater’s directors voted and voluntarily initiated an FCPA investigation and advised the federal government of their violations before the government even suspected any violations.”
Tyrell on Voluntary Disclosure
You know the talking points. The DOJ wants companies to voluntarily disclose, not ifs, ands or buts about it. It’s interesting though how this becomes less of a black and white issues when individuals leave the DOJ.
In this recent Q&A in The Metropolitan Corporate Counsel, Steven Tyrell (a former DOJ Fraud Section Chief and current partner at Weil Gotshal – here) was asked the following question – “what is the role of voluntary reporting in establishing a good relationship with the regulatory and enforcement authorities?”
He stated as follows.
“In the first instance, if a company has a legal obligation to disclose – for example, government contractors are obliged to disclose fraud – then the analysis begins and ends there. Assuming there is no legal obligation that compels disclosure or no imminent threat of disclosure by an outside party, such as a newspaper, then I typically advise clients to take credible allegations of wrongdoing seriously, look into those allegations in a manner that is appropriate under the circumstances, and assess the nature and extent of the company’s exposure and the pros and cons of disclosure. Then, and only then, should a disclosure be made if it is in the best interest of the company – or, for a public company, if the securities laws require it. Of course, it often will not be in a company’s best interest to disclose if, for example, the allegations prove not to be credible or if it is unclear whether the conduct even amounts to a violation of law. Under those circumstances, a disclosure could unnecessarily embroil the company in a lengthy and costly government investigation and result in other repercussions such as triggering civil litigation and harm to a company’s reputation that could otherwise be avoided. It’s a challenging calculus. I can tell you from past experience that there are companies that have strong reputations for compliance with regulators and others that do not. However, the fact that a company doesn’t disclose a problem that ultimately comes to DOJ’s attention is not necessarily going to damage the company’s credibility with DOJ. Regulators recognize that not every allegation should be of interest to them – and, frankly, having counsel that knows when they’ll be interested and when they won’t is really important.”
Guidance Issues
As highlighted in this previous post, soon after Assistant Attorney General Lanny Breuer announced in November 2011 that FCPA guidance would be forthcoming in 2012, Senator Grassley sought guidance on the guidance and asked Attorney General Holder several follow-up questions for the record. For a copy of Holder’s responses, see here.
In this previous post, among others, I commented that non-binding DOJ guidance is not the best way to accomplish real and meaningful FCPA reform.
Thus, I completely agree with former DOJ Deputy Attorney General George Terwilliger and former DOJ attorney and Senate counsel Matthew Miner (both currently at White & Case, see here and here) when they state as follows in this article.
“The fact that the Justice Department recognizes the need for such guidance underscores the existence of blurry lines and fuzzy standards surrounding the FCPA. US businesses trying to compete successfully in the international commercial arena deserve better. Justice Department ‘guidance’ is neither enough, nor is it properly the role of prosecutors to be definitive interpreters of ambiguities in criminal laws. Congress writes the laws and, as the US Supreme Court has firmly established, has a responsibility to set clear standards for what is permissible and what is not. It should not stand aside in deference to the Justice Department’s plan to craft guidance, especially when that guidance will have no effect in court.”
Yara Fertilizer
It has been said before that anytime a foreign company is the subject of a corruption probe, the U.S. enforcement agencies are like children at a birthday party waiting for some candy to fall from the pinata. Think what you will of the analogy.
The Wall Street Journal recently reported (here) that “Norwegian fertilizer producer Yara International ASA’s chief executive, Jorgen Ole Haslestad, apologized Friday to the company’s employees after an investigation uncovered millions of dollars in ‘unacceptable’ payments in India and Switzerland, as well as ‘unacceptable offers of payments’ in Libya.” According to the article, the “unacceptable offers of payments” in Libya involve “a consultant related to the establishment of the company Libyan Norwegian Fertilizer Co., or Lifeco, in Libya, a joint venture with the Libyan National Oil Corp. and the Libyan Investment Authority.”
As noted on the company’s website here, Yara “has a sponsored Level 1 ADR program for American Depositary Receipts (ADRs), which represent ownership in shares of foreign (non-US) companies that trade on US financial markets.” Whether foreign companies, including those with Level 1 ADR’s can become subject to the FCPA, see this excellent piece “When Does an ADR Program Give U.S. Authorities FCPA Jurisdiction Over a Foreign Issuer?”
Time will tell if the candy falls.
Checking in on Wynn Resorts
Previous posts here, here and here focused on the Wynn-Okada dispute including Wynn’s $135 million charitable contribution to the University of Macau. On that topic, this recent Wall Street Journal article focused on the “web of political ties” between a Macau company paid by Wynn and government officials. Regarding Wynn’s FCPA compliance in expanding in Macau, company CEO Steve Wynn stated as follows. “This whole business of the Foreign Corrupt Practices Act—we were schooled in this.”
Final grade is pending.
Section 1504 Development
Several prior posts, see here for example, discussed Section 1504 of Dodd-Frank, the so-called Resource Extraction Disclosure Provisions and the long delay in SEC final rules. As noted in this Corruption Current post by Samuel Rubenfeld, the SEC recently announced here that on August 22nd, “the Commission will consider whether to adopt rules regarding disclosure and reporting obligations with respect to payments to governments made by resource extraction issuers to implement the requirements of Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
“Minegolia”
There has been only one FCPA enforcement concerning, at least in part, business conduct in Mongolia (see here for the 2009 UTStarcom action). This is hardly surprising, as few companies subject to the FCPA have traditionally engaged in business in the country. However, as noted in this recent Al Jazerra article, Mongolia or “Minegolia” as the country is sometimes called, “is undergoing a rapid transformation, due to its incredible resource wealth in minerals such as coal, copper, and gold.” At the same time, the article notes that “Transparency International placed Mongolia 120th out of 183 nations on its corruption perception index” and that “90 percent of Mongolians believe politicians are benefitting from ‘special arrangements’ with foreign enterprises over mining rights.”
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A good weekend to all.
“The FCPA – A View From The Hill”
At the Oil and Gas Supply Chain Compliance conference yesterday in Houston (see here), Todd Harrison (Chief Counsel, Oversight and Investigations, Energy and Commerce Committee, U.S. House) gave a presentation titled “The FCPA – A View from the Hill.”
Harrison provided his personal views on FCPA reform, specifically the “currents on the Hill” regarding the issue and a “sense of what Congress is thinking about in terms of changing” the law. Harrison stated that until recently, the FCPA has not been a “tremendous focus on Capitol Hill” and that even against the backdrop of recent efforts to reform the FCPA “there is not a lot of momentum on the Hill for changes to the FCPA.” However, Harrison stated that it “usually takes a lot of time to get things rolling and for legislation to come to fruition” and that changes to legislation often take place over 2-3 Congresses (each with a two year term) because there a lots of discussions with various stakeholders.”
[As a historical aside, the last period of major FCPA substantive reform occurred in the 1980’s and that process took 8 years from the time the first reform bill was introduced until President Reagan signed the Omnibus Trade and Competitiveness Act of 1988 which contained FCPA amendments at Title V, Subtitle A, Part I.]
Harrison next spoke of the “very prominent setbacks” the DOJ has recently suffered, most notably the Africa Sting cases, and that in light of these setbacks there was indeed “momentum gaining to make changes to the FCPA.” However, Harrison said that the New York Times Wal-Mart article “changed the tide and mood entirely.”
During the Q&A, I asked Harrison generally as follows – “I know that Capitol Hill is a political institution and body, but explain why the Wal-Mart investigation should impact FCPA reform, after all, Wal-Mart is now one of approximately 125 companies under FCPA scrutiny and it is debatable whether the Wal-Mart payments at issue even violate the FCPA.” (see here for the prior post).
Harrison said that as a “practical matter, public opinion matters, what happens in the real world matters” and that the atmosphere surrounding FCPA reform after the Wal-Mart article has made it “harder for different groups to advocate” for FCPA reform. Harrison acknowledged that this perception “does not have a whole lot to do with the underlying facts” of the Wal-Mart matter, but that “public perception and pressure on government institutions” matters.
As to substantive FCPA reform, Harrison focused mostly on successor liability issues, which he called the Chamber’s number one reform issue. However, Harrison said that this concern was hypothetical because as a “practical matter the DOJ has not been bringing prosecutions under this theory.” During the Q&A I asked him whether anyone on the Hill is actually reading the enforcement actions because recent DOJ or SEC enforcement actions based on successor liability theories include Alliance One, General Electric and Watts Water Technologies. In response, Harrison backtracked and said “no one has come to me about those particular cases” and that “none of these particular cases have become prominent on Capitol Hill.”
In short, Harrison’s personal view was that there is not a “wave of support or pressure to make actual legislative changes regarding successor liability.”
In response to a question, Harrison did not have any insight as to the timing of expected FCPA guidance. He stated that his “personal guess is not anytime soon.”