What is the current thinking of FCPA enforcement officials at the U.S. Department of Justice (DOJ) and U.S. Securities and Exchange Commission (SEC)? At ACI’s 30th International Conference on the FCPA this year, two top officials provided insights (they clarified that their statements reflected their own views and not the views of their respective agencies).
FCPAméricas has published each year a similar post to this one based on past ACI presentations – see the 2011 post and 2012 post. This year, the DOJ’s Deputy Chief of the FCPA Unit Charles Duross, and the SEC’s Chief of the FCPA Unit Kara Brockmeyer, discussed the following issues:
“The numbers shouldn’t fool you.” Ms. Brockmeyer said that, even though the number of FCPA enforcement actions is down...Read more
Classic military strategist Helmuth von Moltke the Elder said, “No plan survives contact with the enemy.” In addition to its application on the battlefield, this lesson is good to keep in mind during anti-corruption due diligence as well.
Outside counsel recommend that companies conduct due diligence on third parties (as discussed by FCPAméricas here). But what if the third party pushes back? What if a contractor declines to provide financial statements or curriculum vitae for its top sales personnel? What if a customs broker refuses to include anti-corruption compliance language or audit rights in a contract? Or if a distributor is unwilling to fill out a questionnaire?
One of the most important elements of a robust compliance program is training. As mentioned in the Resource Guide to the FCPA, “DOJ and SEC will evaluate whether a company has taken steps to ensure that relevant policies and procedures have been communicated throughout the organization, including through periodic training.”
Moreover, simply conducting training is not enough. The Resource Guide mentions that “regardless of how a company chooses to conduct its training, the information should be presented in a manner appropriate for the targeted audience.” FCPAméricas has previously discussed training here, here, and here...Read more