I seriously question whether certain FCPA commentators who hold themselves out as experts have even read and/or understand the Foreign Corrupt Practices Act statute.
For instance, presumptions are not new to the FCPA space. Indeed, as highlighted below the FCPA (the actual statute – not mere non-binding DOJ policy such as announced last week in the form of the DOJ’s “FCPA Corporate Enforcement Policy) already has some presumptions.
The FCPA specifically states:
“[If an issuer] “holds 50% or less of the voting power with respect to a domestic or foreign firm, [the books and records and internal controls provisions] require only that the issuer proceed in good faith to use its influence, to the extent reasonable under the issuer’s circumstances, to cause such domestic or foreign firm to devise and maintain a system of internal accounting controls …. Such circumstances include the relative degree of the issuer’s ownership of the domestic or foreign firm and the laws and practices governing the business operations of the country in which such firm is located. An issuer which demonstrates good faith efforts to use such influence shall be conclusively presumed to have complied with the requirements of [the books and records and internal controls provisions].”
What is interesting about this express statutory provision is that several FCPA enforcement actions against issuers are based on the conduct of entities in which the issuer holds less than 50% or less of the voting power of the entity, in the absence of any allegation, finding or inference that the issuer lacked good faith.
Moreover, in the FCPA, Congress directed that the DOJ shall “establish a procedure to provide responses to specific inquiries by issuers [and domestic concerns] concerning conformance of their conduct with the Department of Justice’s present enforcement policy regarding the [FCPA].”
As set forth in the FCPA, the DOJ “shall state whether or not certain specified prospective conduct would, for purposes of the Department of Justice’s present enforcement policy, violate the [FCPA] and:
“In any action brought under the applicable provisions of [the FCPA], there shall be a rebuttable presumption that conduct, which is specified in a request by an issuer [or domestic concern] and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department of Justice’s present enforcement policy, is in compliance with the [FCPA]. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption for purposes of this paragraph, a court shall weight all relevant factors, including but not limited to whether the information submitted to the Attorney General was accurate and complete and whether it was within the scope of the conduct specified in any request received by the Attorney General.”
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