Is It Too Much To Ask For The DOJ To Keep Its FCPA Website Up To Date?
The DOJ has a specific website devoted to the Foreign Corrupt Practices Act.
On the site you will find a purported chronological list and alphabetical list of Enforcement Actions.
With any free website (let alone a government website), there is probably not an expectation that the website be updated every day or perhaps every week as developments occur.
However, is it asking too much for the DOJ to keep its FCPA website reasonably current – and thus accurate?
Where Is The Due Diligence?
Most Foreign Corrupt Practices Act enforcement actions include, in whole or in part, allegations about various third parties and how they are used to facilitate things of value being provided to foreign officials.
The FCPA’s third-party payment provisions can result in a company being liable for the acts of third parties even in the absence of actual knowledge of the third party’s activities by including concepts such as willful blindness, conscious disregard etc.
Because of this, due diligence of third parties is an important component of FCPA compliance.
The term appears approximately 80 times in the DOJ/SEC issued FCPA Guidance including the following: “Risk-based due diligence is particularly important with third parties and will also be considered by DOJ and SEC in assessing the effectiveness of a company’s compliance program.”
Judicial Decision Touches Upon On A Variety Of FCPA Issues
As highlighted in this prior post, in February 2024 Javier Aguilar was convicted by a federal jury “for his role in a scheme to bribe Ecuadorean and Mexican government officials and to launder money to secure contracts worth hundreds of millions of dollars for his then-employer, Vitol Inc. (Vitol), the U.S. affiliate of the largest independent energy trading firm in the world.” Aguilar was convicted of one count of conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”), one count of violating the FCPA, and one count of conspiracy to commit money laundering.
Thereafter, Aguilar filed a motion for judgment of acquittal, or in the alternative, for a new trial. Recently, Judge Eric Vitaliano (E.D.N.Y.) denied the motion and in doing so touched upon the FCPA’s “foreign official,” element, knowledge, and the FCPA’s local law affirmative defense.
FCPA Institute – Zoom (September 10-12)
Since 2014, the FCPA Institute has elevated the Foreign Corrupt Practices Act knowledge and practical skills of professionals from around the world. The FCPA Institute began as an in-person event, but shifted to Zoom in 2020. The Zoom event is time and cost efficient and has resulted in greater participation from professionals around the world.
The next FCPA Institute – Zoom will be offered on September 10-12 and consists of 9 hours of integrated and cohesive instruction (each day from 8:30-11:30 a.m. central) led by Professor Koehler, an FCPA expert with FCPA practice and teaching experience.
FCPA Institute – Zoom participants will encounter FCPA authority and other sources of information that define the modern era of FCPA enforcement and will gain knowledge of the following topics among others:
FCPA Repeat Offenders
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).