Back to the Basics An End of the Year Review of the FCPA

Transcription

1 womblebonddickinson.com Back to the Basics An End of the Year Review of the FCPA Claire J. Rauscher Partner-Womble Bond Dickinson Charlotte, North Carolina December 12, 2017

2 Year End Review of the Foreign Corrupt Practices Act ( FCPA ) 1. DOJ FCPA Guidance 2. Recent Settlements 3. Open Investigations 4. Declinations 5. Important Legal Developments 6. DAG Rosenstein s Recent Speech and Introduction of FCPA Corporate Enforcement Policy

3 Department of Justice FCPA Guidance Released February 8, 2017 with little fanfare Hui Chen s (DOJ Compliance Counsel consultant expert) view on compliance with FCPA Entitled Evaluation of Corporate Compliance Programs Lists Eleven (11) Evaluation Topics that DOJ considers relevant in determining the effectiveness of compliance programs in criminal investigations

4 Eleven Areas of Guidance 1. Analysis and Remediation of Underlying Misconduct 2. Senior and Middle Management 3. Autonomy and Resources 4. Policies and Procedures 5. Risk Assessment 6. Training and Communications 7. Confidential Reporting and Investigation 8. Incentives and Disciplinary Measures 9. Continuous Improvement, Periodic Testing and Review 10. Third Party Management 11. Mergers and Acquisitions

5 Recently Opened FCPA Investigations Mining Oil and Gas Pharma Several in conjunction with the SFO in the United Kingdom

6 Recent FCPA Settlements Walmart reserves $283 for FCPA settlement Telia Communications- $548 million to the Department of Justice (offset by $274 million paid to the Dutch authorities), plus over $457 million in disgorgement to the SEC (offset by $40 million paid in criminal forfeiture and an additional $208.5 million anticipated to be paid to the Swedish authorities). Haliburton- $29.2 million, including $14 million in disgorgement, $1.2 million in interest, and $14 million in penalties.

7 Declinations CDM Smith Inc. The declination based on (1) CDM's timely, voluntary self-disclosure of the bribery scheme; (2) CDM's thorough and comprehensive investigation; (3) CDM's full cooperation; (4) CDM's agreement to disgorge to the DOJ all profits from the scheme; (5) CDM's enhancement of its compliance program and controls; and (6) CDM's remediation, including terminating employees involved in the scheme. Linde North American Inc. The declination based on: (1) Linde's timely, voluntary self-disclosure of the matter; (2) Linde's thorough and comprehensive investigation; (3) Linde's full cooperation; (4) Linde's agreement to disgorge all profits from the scheme; (5) Linde's enhancement of its compliance program and controls; and (6) Linde's remediation, including terminating employees involved in the scheme.

8 Important Legal Developments Kokesh v. SEC- Supreme Court Unanimously Holds That Five-Year Limitations Period Applies to SEC Civil Disgorgement Claims Court held that "SEC disgorgement constitutes a penalty" within the meaning of 28 U.S.C. 2462, which provides that government actions seeking a "civil fine, penalty, or forfeiture" are subject to a five-year limitations period. Implications for FCPA disgorgement and SEC investigations

9 DAG Rod Rosenstein s Recent Speech- November 29, 2017 at ACI s International Conference on FCPA Important points: FCPA will continue to be enforced DOJ will continue to work with international partners Good corporate behavior means notifying law enforcement about wrongdoing. FCPA pilot program is essentially continued Announced as the FCPA Corporate Enforcement Policy

10 Highlights of the New Policy If company satisfies self-disclosure standard, full cooperation and timely/appropriate remediation-presumption of declination If company does all of the above but aggravating circumstances, recommendation will be 50% off low end of sentencing guidelines Will detail how DOJ evaluates an appropriate compliance program Policy added to US Attorney Manual FCPA Corporate Enforcement Policy

11 Conclusion Any Questions?

12 Thank you! Claire J. Rauscher Womble Bond Dickinson Charlotte, NC

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