FCPAméricas Blog
Brazil: Waking Up to Anti-Corruption Compliance
11.28.2011
I have been traveling to Brazil for more than a decade now, most often for anti-corruption work, at times for fun.
On my latest trip, I saw something new. Brazilian companies and businesspeople might be beginning to wake up to the notion of anti-corruption compliance.
This observation is not based on any empirical data. It is purely anecdotal. But sometimes there is value in what one sees and hears on the ground. Consider the following:
The Embraer Subpoena. Brazilian professionals are asking questions about the U.S. Securities and Exchange Commission (SEC)’s investigation of Embraer for potential U.S. Foreign Corrupt Practices Act (FCPA) violations. They wonder the implications of Embraer’s retention of U.S. counsel and cooperation with the SEC and U.S. Department of Justice (DOJ). They question how it can be that their own companies and business people are subject to the jurisdiction of a country located in an entirely different hemisphere. They are learning about the multi-million dollar fines and jail time commonly associated with FCPA enforcement actions. And they are learning about the compliance procedures that might have helped Embraer avoid the investigation.
In particular, Brazilians are ... Read more
No “Tone From the Top”? What’s Compliance to Do?
11.17.2011
The job of a general counsel or anti-corruption compliance officer in managing a company’s compliance efforts is hard enough. It gets even harder when he or she lacks the “tone from the top” support from senior management. In these situations, what is an officer to do? What lessons on ethical leadership can he or she bring to bear?
This question is not just academic. Recent news reports reveal how Koch Industries Inc. hired a compliance officer and ethics manager in 2008 and soon thereafter sent her to investigate the management of a subsidiary in southern France. After her investigation uncovered bribes, management then removed her from the inquiry. They fired her less than a year after that, claiming that she was incompetent, even though her findings were substantiated by a second round of investigations.
Though Koch Industries is an extreme example, lack of top-down commitment is more common than one might think. According to a recent survey by Corporate ... Read more
What FCPA Enforcement Is Thinking in 2011
11.14.2011
The annual National Conference on the U.S. Foreign Corrupt Practices Act (FCPA) in Washington, DC, hosted by American Conference Institute, is always a unique opportunity to hear from FCPA enforcement officials about what they are currently thinking. This year’s meeting did not disappoint. Held last week, it included noteworthy statements, some of which are provided below, by numerous officials. These statements were qualified in that each represented the official’s own views and not the views of his or her respective agency.
1. Neither the SEC nor the DOJ is focused on one-off, low-level conduct. Charles Cain, an Assistant Director of the FCPA Unit of the Division of Enforcement of the U.S. Securities and Exchange Commission (SEC), explained that SEC enforcement is not focused on one-off, low-level conduct. He pointed to the fact that the cases brought over the last year all dealt with improper activity that was repeated, long-term, and systemic. He said that most SEC actions have included significant activity by high-level executives. Mr. Cain stressed that officials are not looking to charge isolated conduct in an otherwise compliant corporate culture. He said that the SEC is not trying to play “gotcha.” Charles Duross, ... Read more
