FCPAméricas Blog

Healthcare Compliance Risks in Latin America

Author: Carlos Ayres

HealthcareFCPAIn the last decade, there have been a number of FCPA enforcement actions in the healthcare sector. This post discusses some of the challenges faced by companies that operate in Latin America in this industry and ways to mitigate risks. While the challenges discussed are true regardless of the region, they are particularly relevant in Latin America.

Determine who is a government official. One of the main challenges of compliance with anti-bribery laws in the healthcare industry in Latin America arises out of the fact that many hospitals, laboratories, and medical schools are state-owned or state-controlled. Moreover, local legislation often considers healthcare professionals (HCPs) working in such entities as public employees. In Brazil, for example, an HCP who works in a public hospital, even on a temporary basis or without pay, is considered a government official. Because of this, many companies operating in the region have implemented controls to deter... Read more

Move Over “Foreign Official”: There’s a More Important FCPA Debate

Author: Matteson Ellis

MoveOverA lot has been written about the definition of government “instrumentality” under the FCPA. That definition is important because it helps define the scope of the term “foreign official” for purposes of foreign bribery offenses. The May 2014 ruling by the U.S. Court of Appeals for the Eleventh Circuit in United States v. Esquenazi helped put some of this discussion to rest. In that decision, the court largely sided with the U.S. Department of Justice, providing a list of factors to consider and finding “instrumentality” to mean any “entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.”

In practice, however, the definition of “foreign official” has been less important than the discourse would suggest. This is beca... Read more

Enforcement of Anticorruption Laws by Foreign Institutions: Potential Pros and Cons

Author: Carlos Ayres

TransationalThe emergence of transnational anticorruption laws and enforcement has generated debates about the fairness, effectiveness, and legitimacy of enforcement of legal norms by foreign or international institutions. In a paper developed over the last years and published in December 2014 entitled Transnational Anticorruption Law in Action: Cases from Argentina and Brazil, professors Kevin Davis, Guillermo Jorge, and Maíra Rocha Machado... Read more


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