FCPAméricas Blog
Reflections on BizJet: When Shoes Keep Dropping
6.19.2013
Today’s guest post is from anti-corruption attorney Matthew Fowler who formerly worked as a compliance officer at a multinational defense company.
In April, two executives of BizJet pled guilty to FCPA violations related to bribing foreign officials in Mexico, Panama, and Brazil. BizJet is an aircraft maintenance, repair, and overhaul company based in Tulsa, Oklahoma. The DOJ also made public charges against two other BizJet executives who, according to the DOJ press release, are “believed to remain abroad.” (FCPAméricas has previously discussed the BizJet action here. Ed.)
FCPA enforcement actions against executives are always eye-catching. But, in this case, the charges were actually the second shoe to drop. The first fell in March 2012, when the DOJ announced that it had entered into agreements halting FCPA prosecutions against BizJet and its corporate parent, Lufthansa Technick AG. An additional (third?) shoe dropped in the form of an enforcement action against the NORDAM Group, an unrelated aircraft maintenance, repair and overhaul company also based in Tulsa. There may be more devel... Read more
The “Don’t Forgets” of FCPA Training
6.13.2013
Most experienced FCPA practitioners are familiar with the basics of FCPA training. Lessons should cover enforcement trends, the elements of the bribery and books and records/internal controls offenses, common forms of FCPA-prohibited activity, the consequences of non-compliance, industries and sectors under the enforcement microscope, and the specifics of the company’s own compliance program. Trainers should tell sensational bribery stories from prior enforcement actions to capture the audience’s attention. For foreign audiences, trainings should be conducted in local languages. Trainers should seek to make trainings fun (FCPAméricas has previously suggested strategies for how to do this).
But other issues often get missed in FCPA trainings. These can be some of the most impactful for encouraging an audience’s adherence to compliance. Here is a list of “don’t forgets” for your FCPA training program:
1. Explain how violations are discovered. When learning about the FCPA, trainees often think that the chances of bribery being discovered by enforcement officials, even if it is occurring within their company, are minimal. It is importa... Read more
How State-Owned Enterprises Are Just Like You
6.07.2013
Usually when FCPA lawyers talk about state-owned or controlled enterprises (SOEs), like many state power utilities, public hospitals, or national oil companies, they discuss them in the context of whether or not they constitute government instrumentalities for purposes of improper payments. In fact, SOEs can present much more complicated issues than this. In some ways, they might be just like your own (non-government owned) company. And this can have significant implications for FCPA compliance.
To be sure, determinations of state instrumentality are no doubt important. If the company is an instrument of the state, its officials are “foreign officials” for purposes of the FCPA. Improper payments to them create liability. Compliance programs must focus on a company’s dealings with them. A number of courts in the United States have concluded that the status determination of instrumentality is a fact-specific analysis that considers a wide variety of issues like the state’s level of ownership and degree of control, whether the state appoints its officers and directors, how the state itself characterizes the entity, and the entity’s purpose. For a more thorough list of factors, see page 20 of the FCPA Guidance... Read more
