Friday Roundup
Across the pond, the big picture, ripple, a muddy mess, to FCPA Inc., scrutiny alert, silly and erroneous, misleading, ISO 37001 related, and for the reading stack.
It’s all here in the Friday roundup.
Across the Pond
In this recent speech, David Green (Director of the U.K. Serious Fraud Office) said the U.K. Bribery Act is “regarded as a gold standard internationally” and, as further proof that so-called enforcement competition does exist, he stated:
The FCPA’s Conversational Waters Are Muddy
There are some issues in the Foreign Corrupt Practices Act space that really should be simple.
For instance, the question “what is an FCPA enforcement action” really should be simple.
However, as highlighted in the article “A Common Language to Remedy Distorted FCPA Enforcement Statistics” various FCPA Inc. participants have adopted (for self-interested reasons perhaps) creative and haphazard counting methods regarding “what is an FCPA enforcement action.” The end result is a muddy conversation about many FCPA enforcement issues and the creative and haphazard counting methods infect the quality and reliability of FCPA enforcement and related statistics of interest to many in the legal and business communities.
Corporate FCPA Repeat Offenders
As highlighted in this post, twelve companies have resolved FCPA enforcement actions – not once – but twice. Thus far in 2017 there have been three FCPA repeat offenders.
Note: this post uses the term repeat offender to mean a business organization that has resolved more than one FCPA enforcement action regardless of which agency (the DOJ or SEC) brought the enforcement action; regardless of the form of the enforcement action (plea agreement, NPA, administrative order, etc.) and regardless of the charges or findings (anti-bribery provisions vs. books and records and internal controls provisions).
Nearly 20 Corporate FCPA Enforcement Actions By The DOJ, Approximately $1.4 Billion Collected, And Not One Company Employee Has Been Charged With FCPA Offenses By The DOJ
As highlighted here, nearly two years ago the DOJ released the so-called Yates Memo, technically a policy memo titled “Individual Accountability for Corporate Wrongdoing.”
There was really nothing new in the Yates Memo as it continued the DOJ’s rhetoric about the importance of individual prosecutions. Specifically, the Yates Memo repeated the following DOJ rhetoric:
“One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.”
Let’s All Take A Deep Breath, Gaps In FCPA Enforcement Are Common
There has not been a corporate FCPA enforcement action since January 19th. In other words, there has not been a corporate FCPA enforcement action brought by the Trump administration.
In the minds of some this is likely “evidence” of [insert whatever grip you have about the Trump administration and assume causation].
However, facts are important and this post highlights the fact that gaps in FCPA enforcement are common and that numerous gaps in FCPA enforcement occurred during the Obama administration.