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Potpourri

Potpourri

A bounty and a disclosure.

Bounty

Earlier this week the SEC released this order determining that a whistleblower is to receive approximately $3.5 million. According to the order: “Claimant alerted Commission staff of alleged securities laws violations, prompting Enforcement staff to expand an existing investigation into an additional geographic area. Claimant, a foreign national, also provided significant assistance to Commission staff by traveling to meet in person with staff, identifying an important witness, and providing multiple supplemental submissions that assisted the Commission in bringing the charges in the Covered Action.”

Pursuant to relevant law, the SEC protects the confidentiality of whistleblowers and does not disclose any information that could reveal a whistleblower’s identity. However, attorneys Andy Rickman and Christopher Connors confirmed that they represented the individual and that the award related to the Juniper FCPA enforcement action.

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In Connection With The Panasonic FCPA Enforcement Action, The SEC Awards A Whistleblower $28 Million

sec-whistle

As highlighted in this prior post, in April 2018 the DOJ and SEC announced a parallel Foreign Corrupt Practices Act enforcement action against Japan-based Panasonic Corp.  and a U.S. subsidiary Panasonic Avionics Corp. (PAC) pursuant to which the entities agreed to pay $280 million.

According to the government, PAC employees, including senior executive, engaged in a scheme to retain consultants for improper purposes other than providing actual consulting services. In one instance, PAC executives negotiated a consulting position with a senior contracts official at a Middle East airlines at the same time the alleged “foreign official” was involved in negotiating a contract amendment on behalf of the airline with PAC. In other instances, PAC employees concealed use of sales agents in Asia, some of which did not pass PAC’s internal diligence requirements.

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Potpourri

Potpourri

FCPA Whistleblower Bounty?

The SEC recently announced “an award of over $5 million to joint whistleblowers whose tip caused the opening of an investigation that resulted in a successful enforcement action.” According to the SEC,  “the whistleblowers provided significant information about misconduct abroad that directly supported certain allegations in the enforcement action.”

The accompanying order is heavily redacted, but does mention that the underlying enforcement action “involved misconduct abroad” and was resolved through an administrative proceeding.

My guess is that the underlying action was likely an FCPA enforcement action. If true, this would be rare instance of a bounty being paid out in connection with an FCPA enforcement action.

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FCPA “Tips” Continue To Be A Minor Component Of The SEC’s Whistleblower Program

whistle

The Dodd-Frank Act enacted in July 2010 contained whistleblower provisions applicable to all securities law violations including those under the Foreign Corrupt Practices Act.

In this prior post from July 2010, I predicted that the whistleblower provisions would have a negligible impact on FCPA enforcement. As noted in this prior post, my prediction was an outlier (so it seemed) compared to the flurry of law firm client alerts predicting that the whistleblower provisions would have a significant impact on FCPA enforcement. Many FCPA Inc. participants seemed so eager for a marketing opportunity to sell compliance services, that some even called the generic whistleblower provision the FCPA’s “new” whistleblower provisions.

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

oecd

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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