Contrary to some expectations, the Trump Administration Department of Justice imposed record penalties under the U.S. Foreign Corrupt Practices Act from 2017 through 2020. But in each of those years, fewer and fewer new FCPA investigations were initiated. We expect the Biden Administration to continue the trend of increasing FCPA enforcement settlement values, while also increasing the pace of initiating new FCPA investigations. Anticorruption matters present some of the most severe threats to a company’s organizational integrity. Understanding the changing enforcement culture is an important component to addressing those threats.
Continue Reading The Next Four Years of FCPA Enforcement: What to Expect From the Biden Administration

COVID-19 took the world by surprise and continues to spread across the globe in more than 210 countries and counting.  The outbreak in the United States escalated rapidly, with over 585,000 confirmed cases as of April 14, 2020.  The federal government and a number of hard-hit states were caught off guard, and soon learned that their inventories of personal protective equipment (“PPE”) and other life-saving equipment such as test kits and ventilators were insufficient to keep pace with the pandemic.  The demand for equipment to fight COVID-19 skyrocketed and government and commercial entities have shifted into high gear to respond.  Whether motivated by humanitarian concern or commercial enterprise, many state and local governments, companies and individuals are now looking abroad to procure critical supplies on an expedited basis.  At the same time, many foreign industrial manufacturers are positioning themselves for the high demand of exports by adapting their facilities to produce PPE.  For example, Chinese electric car maker BYD announced on March 13, 2020 it is now the largest face mask factory in the world—less than one month after converting its facilities in response to the pandemic.  In the midst of these exigent circumstances, the global supply chain landscape is replete with Foreign Corrupt Practices Act landmines—and well-intentioned companies hoping to partner with foreign PPE manufacturers could become a casualty if they don’t watch their step.
Continue Reading FCPA Landmines Beneath the Surface of the COVID-19 Crisis

The summer of 2017 saw the U.S. Department of Justice’s docket still teeming with Foreign Corrupt Practices Act (FCPA) cases. In this post, we draw a few lessons from three of them, which bring together three threads that seem often to weave together: bribery, kleptocracy, and money laundering.
Continue Reading News Flash: Kleptocrats Still Taking Bribe Money With One Hand and Laundering it With the Other

On August 29, it was announced that the U.S. Department of Justice is considering an investigation into Uber, the San Francisco-based technology company that has expanded its ride-sharing service abroad to more than 70 countries. Press reports indicate that DOJ may investigate potential violations by company personnel of the U.S. law against foreign bribery, known as the Foreign Corrupt Practices Act (FCPA). On the same day, the company confirmed the review and said that it was cooperating with the Justice Department on the matter.
Continue Reading Growing Pains for Expanding Tech Companies: Uber Investigated for FCPA Violations

Ok, ok, don’t panic. Maybe not all of the millions of dedicated readers of this blog are in violation.

Nevertheless, as of June 1, if your company does business in France, it may be time to check your anticorruption compliance obligations.
Continue Reading Oh, Hadn’t You Heard? You’re Violating French Law Right Now! France Gets Serieuse about Anti-Corruption

You may have heard of the Yates Memorandum, which sets forth current Justice Department policy on corporate cooperation with criminal investigations. But the Securities and Exchange Commission has just announced another significant policy change, which hasn’t garnered the same attention: self-disclose or forfeit access to key favorable case dispositions.
Continue Reading When Voluntary Self-Disclosure Isn’t so Voluntary: SEC Says Self-Disclose or Forfeit Non-Prosecution and Deferred Prosecution

Like a needle to a balloon, the Schrems decision has drastically altered the data privacy landscape. Who is affected? Everyone – consumers, corporations, employees. But who needs to take action? Any company with offices in the European Union and the United States, any European company that outsources work to the United States (do you know where your cloud is?), and any company that sends information from the EU to the United States.
Continue Reading The Schrems Decision: How the End of Safe Harbor Affects Your FCPA Compliance Plan

On June 16, 2015, IAP Worldwide Services Inc., a private defense and government contracting company, agreed to pay $7.1 million to settle criminal charges of the U.S. Foreign Corrupt Practices Act (FCPA) related to bribing Kuwaiti government officials to secure a Kuwaiti government contract.  On the same day, James Michael Rama, IAP’s Former Vice President of Special Projects and Programs also pleaded guilty to FCPA charges.  For U.S. government contractors, the opportunities to provide services and expertise to foreign governments are lucrative, but this enforcement action also highlights the risks associated with obtaining such contracts.
Continue Reading Government Contracting Abroad: Beware Compliance Risks

In a recent Opinion Procedure Release (OPR), Number 14-02, the U.S. Department of Justice expressly limited successor liability for a US company purchasing a non-US company that had paid bribes in the past.  In so doing, DOJ may have given a little bit of comfort to US companies and issuers thinking about purchasing non-US companies.  But as described below, we emphasize “little bit.”
Continue Reading DOJ Issues Opinion, Provides (Some) Comfort on Successor Liability

Anti-corruption due diligence can be vexing even in the best of conditions; it is often made more complicated by time and business pressures that arise in the context of a merger or acquisition or an urgent sales opportunity.  Anti-corruption compliance is always fact-intensive, and due diligence is no exception, requiring many judgment calls about what issues to prioritize and how to deploy limited resources.  This article aims to provide a basic outline of seven key steps to consider in anti-corruption due diligence.
Continue Reading Beyond the Checklist: Seven Keys to Effective Trade Due Diligence

On August 14, 2014, Joel Esquenazi and Carlos Rodriguez filed a Petition for a writ of certiorari in the U.S. Supreme Court seeking clarification of a key term in the Foreign Corrupt Practices Act.  Among other arguments, Esquenazi and Rodriguez (the “Petitioners”) state that the FCPA “leaves open the pivotal question of who qualifies as a ‘foreign official’” because the law does not define what it means to be an “instrumentality” of a foreign government.  The Department of Justice has waived its right to respond to the Petition, possibly signaling that the government believes the issue does not warrant the Court’s review.  Last week, the Washington Legal Foundation and the Independence Institute, a pro-business policy group and think-tank respectively, filed a friend-of-the-court brief in support of the Petition, arguing that the case is of exceptional importance to the business community.
Continue Reading Who’s a “Foreign Official”? Supreme Court Could Clarify Key FCPA Term