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Friday Roundup

The guidance is coming – the guidance is coming, compliance by the numbers, checking in on Wynn-Okada, industry news, and refreshing candor.  It’s all here in the Friday roundup.


Since Assistant Attorney General Lanny Breuer announced last November that the DOJ would be issuing FCPA guidance in 2012 (see here for the prior post), approximately 25 years after Congress encouraged the DOJ to issue guidance, FCPA Inc. has been waiting patiently, and too long (see here for the prior post), for such guidance.

There have been whispers that the guidance would be released in October and this recent Wall Street Journal Corruption Currents post by Chris Matthews, citing “people familiar with the matter” confirms those whispers.

Compliance Practices By The Numbers

What percentage of the Fortune 500 have publicly available, stand-alone FCPA compliance policies and procedures?  Do the policies and procedures include discussion of the FCPA’s books and records and internal control provisions?  How do companies  address facilitation payments?  What about gift-giving?

Answers can be found in this recent article in Corporate Counsel by Ryan McConnell (Baker & McKenzie), Jay Martin (Baker Hughes) and Paula Bonavides (a University of Houston law student).


Remember Kazuo Okada, the former business partner of Steve Wynn, accused of various FCPA violations by Wynn Resorts earlier this year?  Given the nature of Wynn’s  investigative report authored by former FBI Director Louie Freeh of Freeh, Sporkin & Sullivan LLP (see this prior post which provides a detailed summary of the report) it is not surprising, as noted in this Reuters article, that Okada has filed a defamation lawsuit in Japan against the casino company and its officials.  According to the article, Okada is claiming $140 million in damages and he alleges that Wynn’s actions led to a decline in his company’s stock price, a decline in new business opportunities, and damaged his reputation.  As noted in the Reuters article, a Wynn spokesperson said that Okada’s lawsuit is an “attempt to distract” from the real issues facing Okada and his company “as identified in the Freeh Report.”

Industry News

Speaking of Freeh, in addition to his role in the Wynn-Okada dispute, he is also known in FCPA circles for being the monitor in the Daimler FCPA enforcement action.  (See here for the prior post).

As noted in this release from Pepper Hamilton LLP, the firm “and the lawyers of Freeh Sporkin & Sullivan, LLP  announced the union of the legal talent of the two firms and Pepper Hamilton’s acquisition of Freeh Group International Solutions, LLC.”

Refreshing Candor

FCPA Inc. participants are of course an active group of speakers.  But rarely does one find much candor in the discussions.  FCPA Inc. participants often filter what they say cognizant of client issues and mindful of what the small world of enforcement agency officials will think of them.  I’ve had numerous exchanges with industry participants in which a person says something insightful or provocative. I then offer up the opportunity to publish a guest post on FCPA Professor, and the person declines.

Against this backdrop, this recent transcript of the 2012 Chief Legal Officer Leadership Forum hosted by Argyle Executive Forum is a nice read in that Adam Siegel (the c0-chair of global white collar group at Freshfields Bruckhaus Deringer) speaks with refreshing candor.  Siegel (here, a former federal prosecutor) states as follows.

Regarding a compliance defense.

“Well, the U.K. act, even though it’s perceived as being broader and worse than the FCPA, has this wonderful feature to it, which is that a corporation is legally not responsible if it had adopted adequate procedures.  It’s a great argument that we can take to the business about why they ought to invest in an appropriate compliance program.  It means we’re actually innocent and you’re not begging some 27-year-old – apologies to anyone in the room of that age – to exercise their enormous discretion and give the corporation and shareholders a pass because some rogue employee in Indonesia has decided that they were going to do something to hit their targets this year.”

On the increase in FCPA enforcement.

“In 2005, due to some changes in personnel and some other issues of justice, someone realized that they can use this statute more aggressively.  If you think back to 2007, we had a major record in FCPA civil and criminal finds; $150 million.  I think people were amazed that in that year that was what the government was able to do.  Fast forward to 2010 and you’re at $1.8 billion.  I mean, if any of us in this room have a business that has grown at that rate, I think we’d all be very happy and our shareholders would be delighted.”

On the global trend of increased enforcement.

“I think some of it is pressure from globalization.  I think a lot of it is looking at the numbers on that chart.  I think a lot of the global anti-bribery movement is driven by regulators around the world saying, Okay, a German company just paid $300 million to the U.S.  That’s sort of funny to us.  Where are we in this? I think there is some international pressure.  There is the pressure of raising the bar, but there’s also a very cynical pressure of raising money.  We’re in an economic climate today where I don’t think there’s a single government in the world that isn’t struggling to find resource.  This area has emerged, again, as a money making center, which is kind of bizarre.”


A good weekend to all.

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