A Surprising Snippet From The Recent Opinion Procedure Release
This prior post highlighted the DOJ’s recent FCPA Opinion Procedure Release (only the third FCPA opinion procedure release since 2014).
In the release, sought by a “child welfare agency based in the United States,” the DOJ stated that it did not intend to take any enforcement action based on information provided by the Requestor regarding certain expenses for two government officials from a foreign country traveling to the U.S. to visit with families that have adopted children from the Foreign Country.
While the overall conclusion of the release was hardly surprising, there was a surprising snippet from the release that could have been handled better by the DOJ.
This Week On FCPA Professor
FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”
Set forth below are the topics discussed this week on FCPA Professor.
This post highlights the recent net $60.6 million Foreign Corrupt Practice Act enforcement action against Corporacion Financiera Colombiana S.A. (Corficolombiana) and Grupo Aval Acciones y Valores S.A. (Grupo Aval) in connection with Colombian bribery scheme.
Gaining Comfort With Uncertainty
I have been teaching Foreign Corrupt Practices Act content for approximately 20 years (as a lawyer, as a professor in a traditional classroom setting, at my FCPA Institute, and otherwise).
Many individuals come to the FCPA topic expecting to learn bright-line rules and are initially disappointed upon discovering that there are few FCPA bright-line rules. Thus, as highlighted below, an initial learning curve associated with the FCPA is gaining comfort with uncertainty.
2004 Was An Important Year In Terms Of Modern FCPA Enforcement
As highlighted in this post, 2004 was an important year that saw three developments relevant to the modern era of FCPA enforcement.
U.S. v. Kay
Prior to the 5th Circuit’s February 2004 decision in U.S. v. Kay (359 F.3d 738), the government was 0-3 when put to its burden of proof in FCPA enforcement actions outside the context of foreign government procurement. (See here for a summary of those three actions).
“That Cognizant Was Acting In Furtherance Of Generally Applicable Government Policies Does Not Render All Of Its Actions State Actions”
As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.
As highlighted in this prior post, in late 2022 the individuals filed motions claiming that the government outsourced its investigation to Cognizant.