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Checking In Down Under

Australia

Today’s post is from Robert Wyld (Partner, Johnson Winter & Slattery in Sydney) and covers recent developments from Australia in the general area of foreign bribery and commercial crime.

The key issues that are covered include: Current Foreign Bribery Prosecutions; Reforms to Foreign Bribery Laws; The New Corporate Foreign Bribery Offence; The Proposed Commonwealth DPA Scheme; Foreign Bribery Test – Dishonesty or Improper Influence; Reforms to Principles of Corporate Criminal Responsibility.

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Congress Buries Expansion Of SEC Disgorgement Authority In Annual Defense Budget

Capital Hill

A guest post from Gibson Dunn attorneys Barry Goldsmith, Helgi Walker, M. Jonathan Seibald, and Brian Richman.

On December 11, 2020, Congress fulfilled its constitutional obligation “to provide for the common defense,”[1] passing for the 60th consecutive year the National Defense Authorization Act (“NDAA”), H.R. 6395. Buried on page 1,238 of this $740.5 billion military spending bill is an amendment to the Securities Exchange Act of 1934. That amendment gives the Securities and Exchange Commission, for the first time in its history, explicit statutory authority to seek disgorgement in federal district court. It also doubles the current statute of limitations for disgorgement claims in certain classes of cases. The amendment appears to be a direct response to recent Supreme Court decisions limiting the SEC’s authority.

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Regarding Those “Obey-The-Law” Injunctions ….

obeylaw

Today’s post is from Russ Ryan (King & Spalding).

As readers of this blog well know, SEC settlements in FCPA cases are most often memorialized by settled administrative orders that, among other things, require the respondent to pay monetary sanctions and to cease and desist from committing or causing future violations of the statutes and rules charged.  On occasion, however, the SEC instead files a settled FCPA case in federal court, as is its choice.  Indeed, when individual FCPA defendants refuse to settle – corporations nearly always settle – the SEC typically sues them in federal court rather than in an administrative proceeding.

When the SEC proceeds in federal court, it invariably demands – in addition to monetary sanctions – that the court issue a time-unlimited “obey-the-law” injunction that forever prohibits the defendant from violating the statutes and rules charged in the complaint.  Those who settle invariably agree to these injunctions, and courts generally issue them with little or no independent scrutiny of the evidence (if any) that purports to prove their necessity.

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The UK Serious Fraud Office 2020 Deferred Prosecution Agreement Guidance: Something Old and Something New

SFO2

A guest post from Gibson Dunn attorneys Sacha Harber-Kelly and Steve Melrose.

Mr. Harber-Kelly is a former prosecutor at the SFO and was appointed to lead the SFO’s engagement in the cross-governmental working group which devised the DPA legislative framework, and subsequently appointed to draft the DPA Code of Practice, which sets out how prosecutors will operate the DPA regime.

On October 23, 2020, the UK Serious Fraud Office published a new chapter from its internal Operational Handbook, which it describes as “comprehensive guidance on how we approach Deferred Prosecution Agreements (DPAs), and how we engage with companies where a DPA is a prospective outcome.”

At the time of its publication, the Director of the SFO, Lisa Osofsky, remarked, “Publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us.” Director Osofsky’s full remarks are here.

The 2020 DPA Guidance (“the Guidance”) is here.

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Using An Asset Purchase Transaction Structure To Mitigate FCPA Risk

assetpurchase

This post is authored by Foley & Lardner attorneys David Simon, Rohan Virginkar, James Peterson, Kristen Maryn and Stephanie Cash.

Experienced practitioners and dealmakers understand there may be Foreign Corrupt Practices Act risks in an acquisition and have adopted procedures designed to identify and address these issues as part of the M&A diligence process.  Most acquirers ask the right questions, conduct risk-based probes of the target’s compliance program and operations, take steps to allocate the risk of compliance issues in the transaction documents and, in some circumstances, structure the transaction as an asset purchase rather than as a stock purchase or merger.

Where FCPA issues are discovered in the due diligence process, there is an increasingly well-established playbook for addressing and mitigating the exposure created by these issues, including mitigating the resulting risks by taking advantage of the Department of Justice’s (DOJ’s) Corporate Enforcement Program (CEP), requiring voluntary self-disclosure by the target, and thus avoiding a carry-over enforcement action against the acquirer.

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