Over the last several years there has been an unprecedented rise in the number, severity and scope of FCPA enforcement actions by the U.S. government. Foreign and international anticorruption laws and standards are also aggressively increasing.
Key developments include:
We not only defend clients facing allegations of violating the FCPA, we also work proactively to help clients ensure compliance with it. FCPA anti-bribery and accounting provisions impose a number of obligations on domestic companies, regardless of whether they have foreign operations.
The FCPA may also trigger severe criminal and civil penalties for companies and their officers, employees and agents who fail to adhere to its obligations. For example, individuals who violate the anti-bribery provisions may be fined up to $100,000 and/or serve five years of imprisonment. Individuals who violate the accounting provisions may be fined up to $5 million and imprisoned for up to 20 years. Companies and individuals are also subject to potential enforcement actions brought by the SEC.
FCPA compliance training at all levels of an organization can help companies avoid violating FCPA mandates. We have found that a company can substantially improve its chances of avoiding FCPA violations by investing in policy development, training and periodic compliance audits. The cost of this type of investment is comparatively small when assessed side by side with the investment required to defend a company against a government inquiry.
However, the core value of an FCPA compliance program may be that it serves to deter employees from engaging in conduct that may come within the FCPA’s purview — conduct that may be normal and customary in certain foreign countries. The FCPA’s anti-bribery provisions are broad and proscribe authorizing — even offering or promising — payment to a foreign official to assist a company or obtain an improper advantage.
A compliance program could alleviate the widespread misconception among employees that facilitating business in foreign countries justifies payments to foreign officials. It is also likely to empower employees to resist the urge to surrender to undue pressures from foreign officials.
The FCPA also imposes record-keeping and internal control obligations that apply only to public companies. Our attorneys help clients effectively navigate the U.S. Sentencing Guidelines and the SEC, both of which reward effective compliance and ethics programs.
DOJ Enforcement Policy Announcements Provide Promising Guidance
May 23, 2018
Expansion of FCPA “Pilot Program” is Good for Companies, but Heed the Fine Print
December 4, 2017
FCPA Enforcement Is Here To Stay: SEC May However Soften When True Criminal Intent Is Lacking
July 2017
Practice Note: How to prepare for the SEC’s Resource Extraction Disclosure Rule
September 26, 2016
DOJ’s First Corporate Enforcement Action Under FCPA Pilot Program
July 5, 2016