FCPA / Anti-Corruption

On September 5, OFAC issued regulations to implement Executive Order (EO) 13851 related to the situation in Nicaragua.  Signed on November 27, 2018, EO 13851 blocks the property of persons who served as Nicaraguan government officials at any time on or after January 10, 2007, persons who are responsible or complicit in serious human rights abuses, undermining democracy, threatening peace and security, or corruption and expropriation.  It also blocks leaders or officials of entities that have engaged in such practices, as well as entities owned by persons blocked by the EO.

EO 13851 does not restrict general exports or imports involving Nicaragua.  Rather it is targeted at prohibiting US persons from engaging in transactions with designated persons and entities, and any undesignated entities that are owned 50 percent or more by one or more designated entities or persons.

The order also authorizes the US government to block the property of any persons, including non-U.S. persons, that materially assist, or provide financial, material, or technological support for, or goods or services in support of, persons and entities blocked by the order, as well as persons that provide support for human rights abuses, threats to peace and security, corruption and other activities described in the order.
Continue Reading OFAC Issues regulations implementing Nicaragua sanctions

The US Department of Justice (DOJ) Criminal Division announced the publication of updated Guidance on Evaluating Corporate Compliance Programs (2019 Guidance) on April 30, 2019. As discussed in our 2017 FCPA Mid-Year Review, the original guidance, published on February 8, 2017 (2017 Guidance), essentially set forth a list of 11 topics and over 100

US government enforcement of the Foreign Corrupt Practices Act (FCPA) remained robust in 2018, and the trend of increasing multi-jurisdictional cooperation and enforcement continued throughout the year. In the United States, the 33 combined individual and corporate FCPA enforcement actions concluded by the US Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in

On August 24, 2018, the US Court of Appeals for the Second Circuit rejected an attempt by the Department of Justice (DOJ) to expand the jurisdictional reach of the Foreign Corrupt Practices Act (FCPA) over foreign nationals. The three-judge panel affirmed the lower court’s ruling in United States v. Hoskins that a non-resident foreign national

Steptoe’s Brigida Benitez and John London authored an article in The Maryland Journal of International Law titled “Has the International Olympic Committee Risen Above Corruption?” The article reviews the International Olympic Committee’s rules and procedures to assess their adequacy in addressing potential corruption.

More information is available here.

As we discussed in last week’s blog post, on November 29, 2017, Deputy Attorney General Rod J. Rosenstein made remarks at the American Conference Institute’s 34th International Conference on the Foreign Corrupt Practices Act (FCPA) recognizing the success of the FCPA Enforcement Plan and Guidance (commonly referred to as the FCPA “Pilot Program”),

In November, the US Circuit Court for the Second Circuit declined to rehear en banc its July 19, 2017 decision in United States v. Allen, which recognized the testimony of a criminal defendant that is compelled by law in a foreign jurisdiction cannot be used, either directly or indirectly, as evidence against him at

Yesterday, in remarks made at the 34th International Conference on the FCPA, Deputy Attorney General Rod J. Rosenstein recognized the success of the FCPA Pilot Program and announced a revised FCPA Corporate Enforcement Policy geared at “increas[ing] the volume of voluntary disclosures” and “enhanc[ing] the [DOJ’s] ability to identify and punish culpable individuals.”  A transcript of Mr. Rosenstein’s remarks can be found here.

Most importantly, the policy – which has been formally incorporated into the United States Attorneys’ Manual and is limited to FCPA cases – creates the presumption that a company meeting all standards relating to voluntary self-disclosure, full cooperation, and timely and appropriate remediation will have their case resolved through a declination “absent aggravating circumstances involving the seriousness of the offense or the nature of the offender.” Under the policy, aggravating circumstances include (but are not limited to):
Continue Reading Deputy Attorney General Rosenstein Announces Significant New FCPA Corporate Enforcement Policy

In June 2017, the DOJ released the first two corporate FCPA resolutions since the new administration took office. In both cases, the DOJ issued declination letters “consistent with” the FCPA Pilot Program and required the disgorgement of associated gains.  In one of the two instances, the declination letter also required the forfeiture of funds withheld by the company from foreign government officials involved in the alleged wrongdoing.  Neither company is a US “issuer”; thus, unlike in some of the early Pilot Program declinations, there was no SEC disgorgement.

Many FCPA commentators have speculated on the reasons for the slowdown in corporate FCPA enforcement since the new administration took office. We do not intend to enter into that debate here, except to note that we continue to see robust DOJ and SEC activity at the investigation stage.  And, as we noted in our 2017 FCPA Mid-Year Review, final resolutions of ongoing matters may be delayed as a result of the slow pace to date of confirming senior DOJ and SEC officials to permanent enforcement posts.

Despite the slowdown in certain aspects of enforcement, however, the recent declinations are interesting for a number of reasons. First, the DOJ appears at least to remain committed to clearing longstanding investigations out of its inventory.  The DOJ issued the first declination, dated June 16, 2017, to Linde North America Inc. and Linde Gas North America Inc. (collectively “Linde”) relating to conduct that dated to 2006 and had been under investigation for a substantial period of time. 
Continue Reading Icebreaker: Two Pilot Program Declinations Are First FCPA Resolutions Under the New Administration