Where do we go when we need help with the Foreign Corrupt Practices Act? Our top choices are likely to include one or more of the following:
Written by Danforth Newcomb, a partner in Shearman & Sterling’s New York office, this annual publication is the definitive catalog of FCPA prosecutions, enforcement actions and investigations. The writing is meticulous and every case is presented in a consistent at-a-glance format. No wonder the U.S. government appends it to official submissions to the OECD and others.
The front section surveys current developments and trends. It’s an amazing compilation of tables, charts, lists and narrative. Here’s a sample from the 2007 edition:
Among recent FCPA investigations by the United States government, parallel investigations in the following foreign jurisdictions have been reported: Brazil (Gtech); Costa Rica (Alcatel Lucent); France (Halliburton, Total SA); Germany (Bristol Meyers, DaimlerChrysler, Siemens); Greece (Siemens); Hungary (Siemens); India (Xerox); Indonesia (Freeport, Monsanto); Italy (Immucor, UDI, Siemens); Korea (IBM); Liechtenstein (Siemens); Nigeria (Halliburton); Norway (Siemens); and Switzerland (Siemens). In addition, investigations into the defunct U.N. Iraq oil-for-food program by the governments of Australia, France, Denmark, India, South Africa and Sweden have also been reported. While the level of coordination between various governments and agencies currently conducting investigations is not fully apparent, the investigative and prosecutorial demands presented by these alleged violations are significant opportunities for the creation of an international standard of business propriety, casting aside any doubts about the strength of the international anti-corruption effort.
That’s pure gold from Mr. Newcomb — whose FCPA practice began before the FCPA itself. As his firm bio notes, “His experience with the Foreign Corrupt Practices Act began in 1976 with an SEC mandated investigation of Lockheed Aircraft Corporation’s foreign marketing practice, which was a precursor for the FCPA.”
We’re grateful to Mr. Newcomb and thankful to have the FCPA Digest.
This little document is the force that shapes every corporate compliance program. Search the pages of any handbook or how-to about the FCPA and you’ll end up back here — whether you realize it or not. Section 8B2.1 is called “Effective Compliance and Ethics Program” and it’s a gem of brevity and clarity. “To have an effective compliance and ethics program . . . an organization shall (1) exercise due diligence to prevent and detect criminal conduct; and (2) otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.” It continues, “Such compliance and ethics program shall be reasonably designed, implemented, and enforced so that the program is generally effective in preventing and detecting criminal conduct.”
As we’ve said before, no organization will ever eliminate the possibility of FCPA violations. But any organization can prepare itself for the consequences — by having an effective compliance program. The inspiration for how to do that can be found in Chapter 8, Part B of the U.S. Federal Sentencing Guidelines (2005).
It’s a plain-English explanation of the FCPA’s anti-bribery provisions. The U.S. Department of Justice wrote it to help those “unable to obtain specialized counsel on issues related to the FCPA.” Among other things, Uncle Sam’s missive famously lists the compliance red flags of overseas business development. And its concise statement on vicarious liability has opened countless eyes to the enormous risks created by the FCPA. It says, “U.S. parent corporations may be held liable for the acts of foreign subsidiaries where they authorized, directed, or controlled the activity in question, as can U.S. citizens or residents, themselves ‘domestic concerns,’ who were employed by or acting on behalf of such foreign-incorporated subsidiaries.”
The Lay Person’s Guide to the FCPA works especially well as a handout to first-timers. Although it’s written in non-technical language, it carries the authority of the U.S. government. That’s a great combination.
View the documents mentioned above by clicking on the titles.