1. Allegations against Wal-Mart — Just when the debate about FCPA reform was heating up, the New York Times reported that Wal-Mart may have paid $24 million in bribes to Mexican officials to grow the business. The story showed why the FCPA is important. And it derailed the Chamber of Commerce’s campaign to narrow the law and restrict the DOJ’s enforcement of it.
2. Morgan Stanley’s declination — For the first time in FCPA history, the DOJ and SEC publicly credited an existing compliance program as a reason not to prosecute a corporate defendant. The details of the declination also showed what an effective compliance program looks like.
3. The DOJ-SEC guidance — The feds confirmed that successor liability is alive and well, that ‘foreign officials’ really do include employees of certain state-owned enterprises, that paying bribes to reduce taxes is illegal, and that the facilitating payments exception is as narrow as ever. In other words, the guidance ended a lot of wishful thinking by some pundits and defense counsel.
4. Collapse of the Africa sting prosecution — Twenty-two defendants, two hung juries, three acquittals, zero convictions, and the eventual dismissal of all the indictments. The DOJ’s biggest FCPA flop ever was an over-hyped prosecution that always smelled like entrapment and never should have been brought in the first place.
5. Rise of the whistleblower — Welcome to the future of FCPA enforcement. The SEC can now pay up to 30% of recoveries to anyone providing actionable information about FCPA offenses. The agency logged 115 FCPA-related whistleblower complaints during its past fiscal year. Expect more next year. And look for speedy self disclosures by issuers anxious to beat FCPA whistleblowers to the punch.
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