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Friday Roundup

Roundup

Under scrutiny again, guilty plea, and for your listening enjoyment.

It’s all here in the Friday roundup.

Under Scrutiny Again

As highlighted in this prior post, in 2019 Russia-based Mobile TeleSystems PJSC (MTS) agreed to resolve an $850 million DOJ/SEC FCPA enforcement action based on the same alleged core conduct in several other Uzbekistan telecom focused FCPA enforcement actions. (See here and here). As a condition of settlement, MTS was required to retain an independent compliance monitor.

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Deputy AG Monaco On Individual Accountability, Prior Misconduct, Monitors, And NPAs and DPAs (With Commentary)

Monaco

Last week, Deputy Attorney General Lisa Monaco delivered this speech as part of the ABA’s National Institute on White Collar Crime.

While the speech is generating a significant amount of attention, substantively the speech was largely a yawner and the policy changes articulated are marginal at best and elevate form over substance.

As has been highlighted several times on these pages, FCPA (and related) enforcement has long suffered from the following problem (nicely articulated by a practitioner in 1982):

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Corporate FCPA Repeat Offenders

repeatoffender

As highlighted in this post, 18 companies have resolved FCPA enforcement actions – not once – but twice. Nine of these instances have occurred since 2017.

Note: this post uses the term repeat offender to mean a business organization that has resolved more than one FCPA enforcement action regardless of which agency (DOJ or SEC) brought the enforcement action; regardless of the form of resolution (plea agreement, NPA, DPA, administrative order, etc.) and regardless of whether the charges or findings were anti-bribery violations or books and records and internal controls violations in connection with foreign bribery issues. This post does not include instances in which a company resolved an enforcement action concerning foreign bribery and then resolved an action implicating the books and records and internal controls in a so-called non-FCPA FCPA enforcement action. (See here and here for examples). Nor does it include instances in which there was a time gap between a DOJ enforcement action and an SEC enforcement action based on the same core conduct (for instance Las Vegas Sands and Beam).

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Regarding FCPA Repeat Offenders …

repeatoffender

This recent FCPA Blog post asks “How Big a Problem Is Corporate FCPA Recidivism?” The post asserts that there have been 13 repeat FCPA defendants. However, like a lot of data on the FCPA Blog, this number is wrong.

As highlighted in this prior post, there have been 17 repeat corporate FCPA offenders and the post contained the complete list.

While the difference between 13 and 17 may seem like a trivial matter, the difference is statistically meaningful. Moreover, the FCPA Blog’s calculation of the corporate FCPA recidivism rate is also misleading.

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Corporate FCPA Repeat Offenders

repeatoffender

As highlighted in this post, 17 companies have resolved FCPA enforcement actions – not once – but twice. Eight of these instances have occurred since 2017.

Note: this post uses the term repeat offender to mean a business organization that has resolved more than one FCPA enforcement action regardless of which agency (DOJ or SEC) brought the enforcement action; regardless of the form of resolution (plea agreement, NPA, DPA, administrative order, etc.) and regardless of whether the charges or findings were anti-bribery violations or books and records and internal controls violations in connection with foreign bribery issues. This post does not include instances in which a company resolved an enforcement action concerning foreign bribery and then resolved an action implicating the books and records and internal controls in a so-called non-FCPA FCPA enforcement action. (See here and here for examples). Nor does it include instances in which there was a time gap between a DOJ enforcement action and an SEC enforcement action based on the same core conduct (for instance Las Vegas Sands and Beam).

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