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Issues To Consider From The Amec Foster Wheeler / John Wood Group Enforcement Action

Issues

This prior post highlighted the net $17.7 million FCPA enforcement action against U.K. companies Amec Foster Wheeler Energy, which was acquired by Amec Plc in 2014, which in turn, was acquired by John Wood Group Plc in 2017.

This post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this previous post, in Spring 2017 the company disclosed:

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Remember When …

Memory Lane

Remember when Acting Principal Deputy Assistant Attorney General Trevor McFadden stated that it was the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”

This statement was made four years ago this week (see here for the prior post).

However, like much DOJ rhetoric surrounding the FCPA, it was just empty words. As highlighted below, since the DOJ’s statement of intention it has resolved approximately 30 corporate enforcement actions and the average length of time a company has been under FCPA scrutiny has been approximately 4.25 years.

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Like Prior Years, The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2020

Gray Cloud

This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2020.

Continuing with the 2020 FCPA statistical feast, this post follows the chronology of scrutiny to enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.

That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4 years was the approximate median length of time companies that resolved FCPA enforcement actions in 2020 were under scrutiny.

Before highlighting the statistics, some general background.

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Additional Issues To Consider From The Goldman Enforcement Action

Issues

This prior post highlighted the net $1.66 billion Foreign Corrupt Practices Act enforcement action against Goldman Sachs and a related entity.

This prior post posed the question, based on the government’s allegations, what should happen when compliance is decent (and often good), but not great? The prior post also highlighted how the Goldman enforcement action was much different than certain other top ten FCPA enforcement actions.

This prior post discussed various developments related to the Goldman FCPA enforcement action.

This post continues the analysis by highlighting additional issues to consider from the enforcement action.

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Office Of Management And Budget Releases “Best Practices” For “Fairness In Administrative Enforcement And Adjudication”

OMB

In response to COVID-19, in May 2020 President Trump signed Executive Order 13924 titled “Regulatory Relief to Support Economic Recovery.”

Section 1 stated in pertinent part: “it is the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, Executive Departments and Agencies (such as the Securities and Exchange Commission) were directed to commit to “fairness in administrative enforcement and adjudication.”

The Executive Order authorized the Director of the Office of Management and Budget (OMB) to issue guidance implementing the order which the OMB recently did in this memo. The OMB’s list of “best practices” include the following that are relevant to the SEC’s enforcement of the FCPA.

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