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Observations From The OECD’s Phase 4 U.S. Review Report

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Recently, the OECD released its Phase 4 review of the United State’s implementation of the OECD Anti-Bribery Convention … in effect a review of the FCPA, its enforcement, and related issues.

The first question one needs to ask themselves is whether they care what “experts from Argentina and the United Kingdom” (as stated by the OECD “the report and its recommendations reflect the findings of experts from Argentina and the United Kingdom”) think about the U.S. Foreign Corrupt Practices Act, U.S. law enforcement (DOJ and SEC) policies and practices, and U.S. jurisprudence.

In any event, the Phase 4 Report “explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.” (See here for a 2010 post summarizing the OECD’s Phase 3 review).

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The OECD Working Group On Bribery Is “Going To Examine The Possible Impact And Consequences Of The Coronavirus Pandemic On Foreign Bribery”

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It is fair to say that the current COVID-19 crisis has the ability to potentially impact pretty much anything in the world at this point.

Recently the OECD Working Group on Bribery (made up of representatives from the States Parties to the OECD Convention) released a statement indicating that it is “going to examine the possible impact and consequences of the coronavirus pandemic on foreign bribery.”

The statement reads in full:

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DOJ “Piles On” Airbus And Other Issues To Consider

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Prior posts here and here went in-depth into the recent $294 million Foreign Corrupt Practices Act enforcement action against Airbus as well as the United Kingdom’s prosecution of the company.

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

“Piling On”

As highlighted in this prior post, in 2018 the DOJ announced a non-binding policy discouraging “piling on” by instructing DOJ “components to appropriately coordinate with one another and with other enforcement agencies in imposing multiple penalties on a company in relation to investigations of the same misconduct.”

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FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries

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As highlighted in this post, like prior years (see herehere and here) much of the largeness of 2019 FCPA enforcement resulted from corporate enforcement actions against foreign companies.

Specifically, of the 14 corporate Foreign Corrupt Practices Act enforcement actions in 2019, 8 (57%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets or in a few instances on sparse allegations of a U.S. nexus in furtherance of a bribery scheme). Even more dramatic, of the net approximate $2.65 billion in FCPA settlement amounts from 2019 corporate enforcement actions, approximately $2.2 billion (83%) was from enforcement actions against foreign companies.

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