ADM Resolves “Non-FCPA, FCPA” Enforcement Action
The Foreign Corrupt Practices Act has always been a law much broader than its name suggests.
Sure, the FCPA contains anti-bribery provisions which concern foreign bribery.
Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.
However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, these enforcement actions have longed been called non-FCPA, FCPA enforcement actions by this site.
The latest example concerns an SEC enforcement action against Archer-Daniels Midland Company and two former executives.
An Interesting Statement
This site has long followed the criminal prosecution of four former Commonwealth Edison (“ComEd”) executives and associates based on allegations of attempting to influence and rewarding the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company.
Bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues.
However, ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the FCPA has always been a law much broader than its name suggests because of the FCPA’s books and records and internal controls provisions.
A Further Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests
The Foreign Corrupt Practices Act has always been a law much broader than its name suggests.
Sure, the FCPA contains anti-bribery provisions which concern foreign bribery.
Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.
However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery and these provisions are among the most generic legal provisions one can possibly find.
Checking In On Non-FCPA, FCPA Enforcement Actions
There was not an acceleration of Foreign Corrupt Practices Act enforcement actions in the final weeks of the Biden administration similar to what happened in the final weeks of the Obama administration (see here).
There were however several non-FCPA, FCPA enforcement actions brought by the SEC.
What is a non-FCPA, FCPA enforcement action?
It is a term long used on this site to describe enforcement actions charging or finding violations of the FCPA’s books and records and internal controls provisions, but not in the context of foreign bribery.
This post highlights five recent actions.
A $175 Million Non-FCPA, FCPA Enforcement Action
The Foreign Corrupt Practices Act has always been a law much broader than its name suggests.
Sure, the FCPA contains anti-bribery provisions which concern foreign bribery.
Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.
However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery. For lack of a better term, these enforcement actions have longed been called non-FCPA, FCPA enforcement actions by this site.
The latest example concerns Becton, Dickinson and Company (“BD” – a medical technology company) and its Alaris infusion pump.