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Assistant AG Polite Says Do Not “Fall Victim To Recency Bias” And Serves Up A Word Salad

March 24, 2023

Another week, another speech by Assistant Attorney General Kenneth Polite.

In the speech, Polite told an audience of white collar criminal professionals not to” fall victim to recency bias” (even though of course the DOJ facilitates it) and served up a word salad of ambiguous terms and concepts.

I have been reading speeches by DOJ enforcement officials for approximately 15 years and Polite’s speech is one of the worst I have encountered as it is mostly just a play on words.

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The Gap In SEC Individual FCPA Enforcement Actions Is Now 2.5 Years

March 23, 2023

One reason to take FCPA enforcement agency rhetoric with a grain of salt is because it is warranted.

For instance, the FCPA enforcement agencies often talk about the importance of x and how they are committed to x, but in reality rarely do x.

Case in point is SEC individual FCPA enforcement actions.

For many years, SEC enforcement officials have talked about the importance of individual FCPA enforcement actions and set forth below are representative quotes from over the years.

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U.S. Ambassador To Bangladesh: If Corruption Were “Less Prevalent” The Country Would “Attract More Investment”

March 22, 2023

U.S. Ambassador to Bangladesh Peter Haas recently gave this speech at an event in the country.

In the speech, Haas discussed U.S. government support for initiatives “that help Bangladeshi businesses meet international standards and regulations, making them more competitive in the global market,” and offered ideas for how the Bangladeshi government could reduce corruption.

Haas concluded his speech by saying that “if Bangladesh can assure citizens and investors that corruption is less prevalent here than in other markets, it will attract more investment and help the country continue the path of economic growth.”

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The World’s “Most Ethical” FCPA Violators

March 21, 2023

I look at many things through a Foreign Corrupt Practices Act lens. It’s an occupational hazard I guess.

So when looking at this year’s “Most Ethical Companies” list published by Ethisphere, I looked for FCPA violators or companies currently under FCPA scrutiny – and like prior year’s – there were quite a few.

For starters, the “Most Ethical Companies” list has become diluted. This year, Ethisphere recognized 135 companies. By comparison, when Ethisphere first released its list in 2007 there were 92 companies. But who knows, perhaps companies have become ethical.

The following 2023 “Most Ethical Companies” honorees have resolved FCPA enforcement actions: ADM, Allianz, Elbit Systems, Eli Lilly, HP, IBM, Johnson Controls, Juniper Networks, Linde, Rockwell Automation, Pfizer, and Schnitzer Steel.

The following 2023 “Most Ethical Companies” honorees are currently under FCPA scrutiny: 3M, Edwards Life Sciences, and Leidos.

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A Closer Look At The “Factual Basis For Breach” In The Ericsson Matter

March 20, 2023

This prior post covered the 2019 Foreign Corrupt Practices Act enforcement action against Ericsson. The enforcement action concerned conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia and included a DOJ and SEC component. The DOJ matter involved a one count criminal information against Ericsson subsidiary Ericsson Egypt Ltd. charging conspiracy to violate the FCPA’s anti-bribery provisions resolved through a plea agreement and a criminal information against Ericsson charging conspiracies to violate the FCPA’s anti-bribery, books and records, and internal controls provisions resolved through a deferred prosecution agreement. The DOJ matter was resolved through payment of a $520 million criminal penalty.

As highlighted in this prior post, in 2021 the DOJ suggested that Ericsson was in breach of its DPA obligations.

Recently, the DOJ announced that “Ericsson has agreed to plead guilty and pay a criminal penalty of more than $206 million after breaching a 2019 Deferred Prosecution Agreement (DPA).” (See here for the prior post).

The plea agreement contains an attachment titled “Factual Basis for Breach” and it makes for an interesting read. Among other things, the DOJ does assert any additional criminal conduct by Ericsson, nor does the DOJ assert that any of Ericsson’s alleged breaches prevented it from addressing the substantive conduct at issue in the 2019 enforcement. In addition, certain of the blame (seemingly much blame) for Ericsson’s alleged breaches appears to be the result – per the DOJ – of decisions or omissions by Ericsson’s “prior outside counsel.” Although “prior outside counsel” is not identified in the recent “Factual Basis for Breach,” Ericsson’s outside counsel in connection with the 2019 FCPA enforcement action was Simpson Thacher & Bartlett LLP attorneys Cheryl Scarboro, Joshua Levine and Diana Wielocha.

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