Guest Posts Archives - FCPA Professor

US v. Bescond Addresses “Fugitive Disentitlement”: Potential Game Changer For Foreign-Based Defendants Facing US Charges

By Mike Koehler on August 31, 2021 in Foreign Nationals, Fugitive Disentitlement, Guest Posts

A guest post from DLA Piper attorneys John Hillebrecht, Jessica Masella, Olivia Tourgee and Jennifer Delasco.

In recent years, US prosecutors have increasingly pushed the envelope in bringing criminal charges against non-US professionals who live and work abroad and who may have never set foot in the United States, including for alleged violations of the Foreign Corrupt Practices Act, trade sanctions, the antitrust laws, and other statutes and regulations with extraterritorial implications.

Typically, pursuant to the fugitive disentitlement doctrine, these non-US citizens have not been allowed to challenge such charges unless and until they physically surrender to authorities in the US.

When Conducting Risk Assessments There Are No Requirements, But Certainly Some Expectations

By Mike Koehler on August 18, 2021 in Guest Posts

A guest post from Cuneyt A. Akay (Greenberg Traurig)

Risk assessment…this is one of the most commonly uttered phrases in the FCPA vernacular. Many companies understand that assessing their risk is the starting point of designing an effective compliance program.

Perhaps this indicates that companies have a growing awareness of the important of compliance and mitigating corruption risk. Perhaps it means that the DOJ’s and SEC’s continued messaging around “risk-based” and “risk-tailored” compliance is resonating in corporate board rooms and C-suites.

Whatever the reason, risk assessments are often the first thing clients ask me about. What are the requirements of a risk assessment? What is expected from my company? How do I assess my company’s risk?

Key Issues And Questions Arising From The UK Deferred Prosecution Agreement With Amec Foster Wheeler Energy

By Mike Koehler on July 15, 2021 in Amec Foster Wheeler, Guest Posts, John Wood Group, Serious Fraud Office, SFO, Successor Liability, United Kingdom

Previous posts here, here, here, here, and here focused on various aspects of the recent U.S. and U.K. enforcement action against Amec Foster Wheeler / John Wood Group.

This guest post by London-based Debevoise attorneys Karolos Seeger, Aisling Cowell, Thomas Jenkins, and Andrew Lee highlights key issues and questions arising from the UK DPA Amec Foster Wheeler Energy Limited (“AFWEL”).

Prosecution of individuals. All of the AFWEL DPA documents contain introductory wording stating that the Court made no findings of fact or assessment of the culpability of any individuals who may have been involved in the company’s wrongdoing. This is the first time a SFO DPA has included this, or equivalent, wording. This statement is likely due to the SFO’s failure to secure the convictions of any individuals who have been prosecuted in connection with previous DPAs, and is therefore intended to avoid prejudicing the position of those who may be prosecuted following the AFWEL DPA. Edis LJ noted documents indicating that senior employees and directors of AFWEL had engaged in corrupt activities, and that SFO decisions about whether to charge them would be made within three months.

Japanese Ministry of Economy, Trade and Industry Updates Guidance to Prevent Foreign Bribery

By Mike Koehler on July 12, 2021 in Compliance, Facilitating Payments, Guest Posts, Japan, Merger Issues, Third Parties

A guest post from Tokyo-based Latham & Watkins attorneys Kaede Toh and Junyeon Park.

In May 2021, the Ministry of Economy, Trade and Industry (METI) revised the Guidelines for the Prevention of Bribery of Foreign Public Officials (Guidelines). Although the Guidelines do not impose legal obligations on companies, METI expects each company to create and implement an appropriate compliance system with reference to the Guidelines. The revised Guidelines include detailed guidance on due diligence prior to executing an acquisition or retaining a third-party agent — largely consistent with US government expectations under the US Foreign Corrupt Practices Act (FCPA) — and urge Japanese companies and global companies with business operations in Japan to prohibit small facilitation payments. Companies that have business operations in Japan should understand and incorporate the most recent changes to the Guidelines into their local company compliance system to the extent appropriate.

The U.K. Deferred Prosecution Agreement Regime: Aligning Rhetoric And Reality

By Mike Koehler on May 5, 2021 in Airbus, Deferred Prosecution Agreements, Guest Posts, Serious Fraud Office, SFO, U.K. Bribery Act, United Kingdom

A guest post from David Corker (a Partner at Corker Binning Corker in London).

The cornerstone of the Deferred Prosecution Agreement (‘DPA’) regime in our jurisdiction is the centrality of the court. At the start of both his preliminary and final judgments delivered in the first DPA in 2015, Leveson P intended that his affirmation of this principle would become, as indeed it has, axiomatic. Almost every subsequent judgment endorsing a DPA has recited his words about the indispensable judicial role. Opening her 32-page judgment concerning the Airbus DPA in 2020[1], for example, Sharp P (Sir Brian’s successor as head of the Queen’s Bench Division) reproduced (paras 7 and 8) the relevant passages in full.

For this article this extract provides sufficient colour:

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US v. Bescond Addresses “Fugitive Disentitlement”: Potential Game Changer For Foreign-Based Defendants Facing US Charges

When Conducting Risk Assessments There Are No Requirements, But Certainly Some Expectations

Key Issues And Questions Arising From The UK Deferred Prosecution Agreement With Amec Foster Wheeler Energy

Japanese Ministry of Economy, Trade and Industry Updates Guidance to Prevent Foreign Bribery

The U.K. Deferred Prosecution Agreement Regime: Aligning Rhetoric And Reality

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