Friday Roundup
A home run, quotable, monitors, up north, scrutiny alerts and updates, irksome, and for the reading stack. It’s all here in the Friday roundup.
Home Run
The latest issue of the always informative FCPA Update from Debevoise & Plimpton (released by the way on the opening day of the Major League Baseball season) hits a home run.
The lead article by Paul Berger (former Associate Director of the SEC’s Enforcement Division) concerns the recent Elbit Imaging enforcement action (see here for the prior post) and states in pertinent part:
Friday Roundup
Ironic, scrutiny update, and for the reading stack. It’s all here in the Friday roundup.
Ironic
As highlighted in this previous post, in February 2016 SAP (a German company with American Depository Shares registered with the SEC) resolved a $3.9 million FCPA enforcement action based on conduct in Panama and was ordered to cease and desist from committing or causing any violations and any future violations of the FCPA’s books and records and internal controls case.
Fresh off its 2016 FCPA enforcement action, SAP again became the subject of FCPA scrutiny. (See here for the prior post). Indeed, yesterday the Wall Street Journal reported:
Internal Investigations: A Challenging Decision By The English Courts
A guest post today from White & Case attorneys Jonathan Pickworth, Alex Davey and Mhairi Fraser.
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In recent years the UK Serious Fraud Office (SFO) has been making aggressive statements regarding assertions of legal professional privilege by corporates and has launched two significant legal cases in this area.
The first of these challenges occurred in the criminal courts regarding the Barclays Qatar investigation, which saw Barclays eventually partially waive privilege and provide the SFO with the documents requested, rather than having an acrimonious court battle on the topic – something the SFO was prepared to do. The second was a civil test case, instigated by the SFO in the UK High Court, to challenge assertions of privilege in the case of The Serious Fraud Office v ENRC.
Bio-Rad Internal Investigation Documents Highlight The Lack Of Transparency In FCPA Enforcement
The DOJ and SEC frequently speak about the importance of transparency in Foreign Corrupt Practices Act enforcement – as well they should because transparency is a fundamental tenet of the rule of law.
Those in the know however have long recognized that FCPA enforcement is seldom transparent. However, assessing this is nearly impossible in most instances because FCPA internal investigation documents are seldom in the public domain.
Yet, as highlighted in this post, certain Bio-Rad FCPA internal investigation documents were recently publicly disclosed as exhibits in an FCPA-related whistleblower action and the documents call into question the transparency of the FCPA enforcement action against the company.
Must See Video Clips From Assistant AG Caldwell’s Recent FCPA Speech
Kudos to C-SPAN for broadcasting Assistant Attorney General Leslie Caldwell’s recent Foreign Corrupt Practices Act speech and related Q&A. (See here and here for prior posts). The broadcast represents a valuable public service to the FCPA community compared to the norm where DOJ/SEC FCPA officials appear at private events in which the public has to pay to hear their public officials speak about important topics (see here and here for prior posts criticizing this practice) and in which tidbits of information get reported largely through the filters of FCPA Inc. participants.
This post further advances the public interest by clipping Assistant AG Caldwell’s speech into discrete topics such as: (i) how “it’s impossible for a big global company to make sure that all of its employees are following the law all of the time,” (ii) thresholds for voluntary disclosure including how the DOJ does not “need to hear” or “want to hear” about certain potential FCPA violations; (iii) how some companies have engaged in “way too broad” FCPA investigations, and (iv) what a so-called “declination” means.
These clips represent must see video for corporate managers wrestling with FCPA issues and others in the FCPA community.