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Potpourri

Potpourri

FCPA Whistleblower Bounty?

The SEC recently announced “an award of over $5 million to joint whistleblowers whose tip caused the opening of an investigation that resulted in a successful enforcement action.” According to the SEC,  “the whistleblowers provided significant information about misconduct abroad that directly supported certain allegations in the enforcement action.”

The accompanying order is heavily redacted, but does mention that the underlying enforcement action “involved misconduct abroad” and was resolved through an administrative proceeding.

My guess is that the underlying action was likely an FCPA enforcement action. If true, this would be rare instance of a bounty being paid out in connection with an FCPA enforcement action.

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Potpourri

Potpourri

Commercial Bribery

The United Kingdom Bribery Act is a more comprehensive statute than the Foreign Corrupt Practices Act. Unlike the FCPA’s anti-bribery provisions which has a required “foreign official” element, the U.K. Bribery Act – including its so-called Section 7 “failure to prevent bribery” offense – is capable of capturing commercial bribery as well.

Last week the United Kingdom Serious Fraud Office announced a Deferred Prosecution Agreement with Airline Services Limited (ASL) “for three counts of failing to prevent bribery arising from the company’s use of an agent to win three contracts … to refit commercial airliners for Lufthansa.”

According to the DPA, “at the time [between 2011 and 2013], notwithstanding the recent passing of the Bribery Act, ASL had made negligible efforts to educate its staff or to introduce processes to identify and counteract occasions of bribery.”

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Friday Roundup

Roundup

Checking in on an appeal, sentence reduced, and for the reading stack. It’s all here in the Friday roundup.

Checking In On An Appeal

This recent post highlighted the DOJ’s appeal in the Lawrence Hoskins matter.

Recently Hoskins filed a brief in response and is also cross-appealing certain issues.

As to the DOJ’s appeal challenging the trial court’s decision to acquit Hoskins of all FCPA charges on the grounds that the trial evidence utterly failed to prove he acted as an agent of a domestic concern, the brief states in summary fashion:

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Potpourri

Potpourri

Deficient FCPA Reporting

In this New York Times article, journalists once again demonstrate their deficient FCPA knowledge. In reference to Microsoft’s possible purchase of TikTok and the potential of the U.S. Treasury receiving a portion of the sale, the article states: “In essence, the president is promising to orchestrate the kind of pay-to-play bounty that the United States prohibits companies from making to governments of other countries under the Foreign Corrupt Practices Act.”

However, the FCPA does not prohibit business organizations from providing things of value to foreign governments – just foreign officials. As stated in the U.S. government FCPA Guidance “”The FCPA prohibits payments to foreign officials, not to foreign governments.”

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Potpourri

Potpourri

Agreement in Principle

As highlighted in prior posts here and here in 2016 hedge fund Och-Ziff resolved a $412 million Foreign Corrupt Practices Act enforcement action concerning improper business practices in various African countries.

As highlighted in this 2018 post, former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.

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