Examining Enforcement Of The Foreign Corrupt Practices Act

Examining enforcement of the Foreign Corrupt Practices Act: hearing before the Subcommittee on Crime and Drugs of the Committee on the Judiciary, United States Senate, One Hundred Eleventh Congress, second session, November 30, 2010.

Examining enforcement of the Foreign Corrupt Practices Act: hearing before the Subcommittee on Crime and Drugs of the Committee on the Judiciary, United States Senate, One Hundred Eleventh Congress, second session, November 30, 2010.

The United States Government Printing Office (GPO) was created in June 1860, and is an agency of the U.S. federal government based in Washington D.C. The office prints documents produced by and for the federal government, including Congress, the Supreme Court, the Executive Office of the President and other executive departments, and independent agencies. A hearing is a meeting of the Senate, House, joint or certain Government committee that is open to the public so that they can listen in on the opinions of the legislation. Hearings can also be held to explore certain topics or a current issue. It typically takes between two months up to two years to be published. This is one of those hearings.

Part I of this article provides an overview of FCPA enforcement in 2012 and discusses enforcement trends. Part II of this article identifies the top FCPA issues from 2012 and examines the following issues: (A) the wide gap between corporate and individual FCPA enforcement actions, relevant data points that help explain the gap, and recent setbacks when the Department of Justice is held to its burden of proof in individual actions; (B) the origins and prominence of a key FCPA enforcement theory that yielded a high percentage of FCPA enforcement actions in 2012; and (C) how substantively insignificant events in 2012 became top stories simply because they occurred. This examination of top FCPA issues should provide readers an informed base in analyzing enforcement trends, assessing enforcement agency rhetoric and policy positions, and in sifting through the mounds of information disseminated by FCPA Inc.

We examine factors that might explain how sanctions imposed in Foreign Corrupt Practices Act (FCPA) enforcement actions vary across the firms and countries implicated using a dataset of FCPA actions resolved from 2004 to 2011. We find evidence that the sanctions in an individual FCPA action are positively correlated with the egregiousness and extensiveness of the bribe. The sanctions also increase if the ultimate parent company of entities involved in the FCPA violation is foreign and if foreign regulators are involved in the action. At the country level we report evidence that the SEC and DOJ impose greater aggregate sanctions for violations in countries with a lower GNI per capita and weaker local anti-bribery institutions. The SEC and DOJ also impose disproportionately greater aggregate sanctions for violations where the home country of the ultimate parent company of FCPA defendants has a greater GNI per capita, stronger anti-bribery institutions, and a cooperation agreement with U.S. regulators. Overall, these findings suggest that factors besides those deemed relevant by U.S. and international law influence enforcement of the FCPA.

Written by a former FCPA attorney with expert knowledge and experience relevant to the issues discussed, the book injects innovative concepts to the study of the FCPA and its enforcement such as the Šworld�s most ethical FCPA violators,� Šthe faˆade of

Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislation's core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging provisions of the Act, including the two affirmative defenses and the legislation's exception for “grease” or “facilitating” payments. The article also examines recent trends in FCPA enforcement, such as the increased prosecution of foreign companies and voluntary disclosures by corporate entities. This broad and practical overview of the FCPA is an excellent resource for anyone interested in learning more about this robust anticorruption regime.

Foreign Corrupt Practices Act Compliance Guidebook shows readers how the Foreign Corrupt Practices Act (FCPA) has grown to critical importance to any U.S. company that does business in a global environment, as well as foreign companies that supply or have agency agreements with U.S. companies. It provides an overview of the business risks and guidance on spotting potential red flags regarding FCPA violation. Business professionals are provided with practical guidance on managing FCPA requirements as part of an overall compliance program.