FCPA Compliance and Ethics Blog

September 16, 2011

How do You Evaluate a Risk Assessment?

What is the amount of risk that your company is willing to accept? Before you even get to this question how does your company assess risk and subsequently evaluate that risk? In the July issue of the Compliance Week magazine, these questions were explored in an article entitled “Improving Risk Assessments and Audit Operations” in which author Tammy Whitehouse discussed the audit process and how the audit results can form the basis for the evaluation of a risk assessment. In her article Whitehouse focused on the presentation of Michele Abraham, from Timken Co., and how Timken assesses and then monitors risks it determines through its annual compliance audit.

According to Abraham, once risks are identified, they are then rated according to their significance and likelihood of occurring, and then plotted on a heat map to determine their priority. The most significant risks with the greatest likelihood of occurring are deemed the priority risks, which become the focus of the audit monitoring plan, she said. A variety of solutions and tools can be used to manage these risks going forward but the key step is to evaluate and rate these risks. Abraham provided two examples of ratings guides which Whitehouse included in her article. We quote both in their entirety.

LIKELIHOOD

Likelihood Rating Assessment Evaluation Criteria
1 Almost Certain High likely, this event is expected to occur
2 Likely Strong possibility that an event will occur and there is sufficient historical incidence to support it
3 Possible Event may occur at some point, typically there is a history to support it
4 Unlikely Not expected but there’s a slight possibility that it may occur
5 Rare Highly unlikely, but may occur in unique circumstances

‘Likelihood’ factors to consider: The existence of controls, written policies and procedures designed to mitigate risk capable of leadership to recognize and prevent a compliance breakdown; Compliance failures or near misses; Training and awareness programs.

PRIORITY

Priority Rating Assessment  Evaluation Criteria
1-2 Severe Immediate action is required to address the risk, in addition to inclusion in training and education and audit and monitoring plans
3-4 High Should be proactively monitored and mitigated through inclusion in training and education and audit and monitoring plans
5-7 Significant
8-14 Moderate
15-1920-25 LowTrivial Risks at this level should be monitored but do not necessarily pose any serious threat to the organization at the present time.

Priority Rating: Product of ‘likelihood’ and significance ratings reflects the significance of particular risk universe. It is not a measure of compliance effectiveness or to compare efforts, controls or programs against peer groups.

At Timken, the most significant risks with the greatest likelihood of occurring are deemed to be the priority risks. These “Severe” risks become the focus of the audit monitoring plan going forward. A variety of tools can be used, such as continuous controls monitoring with tools like those provided by Visual RiskIQ, a relationship-analysis based software such as Catelas or other analytical based tools. But you should not forget the human factor. At Timken, one of the methods used by the compliance group to manage such risk is by providing employees with substantive training to guard against the most significant risks coming to pass and to keep the key messages fresh and top of mind. The company also produces a risk control summary that succinctly documents the nature of the risk and the actions taken to mitigate it.

The key to the Timken approach is the action steps prescribed by their analysis. This is another way of saying that the risk assessment informs the compliance program, not vice versa. This is the method set forth by the US Department of Justice (DOJ) in its Compliance Program best practices and in the UK Bribery Act Adequate Procedures. I believe that the DOJ wants to see a reasoned approach with regards to the actions a company takes in the compliance arena. The model set forth by Michele Abraham of Timken certainly is a reasoned approach and can provide the articulation needed to explain which steps were taken.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 15, 2011

Preparing for the End of Facilitation Payments

In an article published in the July issue of the Compliance Week magazine, entitled  “The UK Bribery Act: How to Mitigate the Risks or Prosecution for Making Facilitation Payments, authors Jonathan Feig and Richard Thomas discuss how companies can mitigate their risks of prosecution for making facilitation payments under the Bribery Act. This is an area that many US companies may have exposure to as the Foreign Corrupt Practices Act (FCPA) has an exception for facilitation payments but there is no corresponding exception or exemption under the Bribery Act.

Richard Alderman, Director of the Serious Fraud Office (SFO), was recently quoted in thebriberyact.com regarding facilitation payments as saying:

“…I do not expect facilitation payments to end the moment the Bribery Act comes into force. What I do expect though is for corporates who do not yet have a zero tolerance approach to these payments, to commit themselves to such an approach and to work on how to eliminate these payments over a period of time. I have also said that these corporates should come and talk to the SFO about these issues so that we can understand that their commitment is real. This also gives the corporate the opportunity to talk to us about the problems that they face in carrying on business in the areas in which they trade. It is important for us to know this in order to discuss with the corporate what is a sensible process.” [emphasis mine]

As a lawyer, you might well seek from further clarification on what the “sensible approach” might be and how one could advise a client on such a term. Fortunately that is exactly what my colleagues who run the site, thebriberyact.com, did. Richard Kovalevsky Q.C. and Barry Vitou, sought further guidance from the SFO and reported that the SFO will be “looking to see” the following:

1. Whether the company has a clear issued policy regarding such payments;

2. Whether written guidance is available to relevant employees as to the procedure they should follow when asked to make such payments;

3. Whether such procedures are being followed by employees;

4. If there is evidence that all such payments are being recorded by the company;

5. If there is evidence that proper action (collective or otherwise) is being taken to inform the appropriate authorities in the countries concerned that such payments are being demanded;

6. Whether the company is taking what practical steps it can to curtail the making of such payments.

If the answers to these questions are satisfactory then the corporate should be shielded from prosecution. The Feig and Thomas article would seem to speak to this final Point 6, what practical steps is your company taking “to curtail the making of such [facilitation] payments”? They lay out a 5 step process to help curtail the making of facilitation payments.

I.                   Revisit the Anti-Corruption Policy

Your company should have a plan to phase out facilitation payments made by both company employees and those working on your behalf such as agents, resellers, distributor and other foreign business partners.

II.                Understand How Operations Have Changed Since the Ban on Facilitation Payments

Your company should consider key areas where facilitation payments occur to make certain that they are not being paid in another form. For instance, do employees wait in line like everyone else to go through customs or do they now use an agent to shuffle them through in groups. If your company has engaged in such a customs representative, has this agent been vetted through your due diligence program and if so has this agent been audited.

III.             Understand How Employees Manage Situations Where They are Pressured to Make Facilitation Payments

The key here is listening. Your company needs to listen to key employees who travel overseas to high risk areas about situations that they face where a bribe is solicited. Your company also needs an understanding of areas where what employees face is not solicitation of bribes but really extortion because their life, liberty or health and safety is in immediate peril. Your company will back them up if they are required to pay monies to extricate themselves from such a situation.

IV.              Update Training and Internal Communications for Facilitation Payments

Your company must update your training to make clear that facilitation payments will no longer be allowed under your compliance program. The information that your company obtains from listening to your employee, as set out above will enable your company to develop information that they will need for situations where a bribe is demanded. Incorporating the likely scenarios that employees will face into your training is important so that your company can present responses which can be used by employees. This way an employee is not left out in the cold or in the dark about what might happen and what he or she can do about it.

V.                 Update Your Anti-Corruption Monitoring Program

Your company should update its anti-corruption monitoring program to ensure that it captures the identification of facilitation payments. If any such payments are identified, they should be elevated to the compliance department. These controls need to be tested to ascertain their effectiveness. Lastly such controls need to be extended to your foreign business partners.

As I have previously written, the end of facilitation payments in coming. The OECD recommends that they be done away with and the Bribery Act provides no exemption for them. Perhaps a Republican Congress would feel that by removing the facilitation payment exemption it would somehow hurt US businesses overseas. But this feeling would not last for long. So if your company does business in the UK or has a UK subsidiary, you need to start preparing for the end of facilitation payments. You would do well to regularly read thebriberyact.com and to follow the steps laid out by Feig and Thomas in the Compliance Week magazine.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 14, 2011

Compliance Convergence: US Customs and Border Protection’s Importer Self-Assessment Program

Compliance convergence can have several variations. I have written about the convergence from export controls to anti-corruption controls. Last week I wrote about the Lacey Act, which regulates imports of certain types of wood, among other items. One of the valuable lessons of compliance convergence can be the cross-over of lessons learned from one area of compliance to another. I was reminded of this when reading an article in the September issue of the ACC Docket, entitled “Import Loopholes Avoiding the Customs Audit” by Tiffany Jones. Her article discusses the “Importer-Self Assessment” (ISA) program initiated by the US Customs and Border Protection (CPB). The ISA has a requirement for a company to perform a “self-assessment” which means auditing, reporting results and correcting mistakes and implementing process improvements. This ISA relates to imports but it can be very useful for the Foreign Corrupt Practices Act (FCPA) compliance practitioner.

The CPB looks at five criteria to evaluate whether a company is ISA-ready. These will be familiar to the compliance professional. The terminology is a bit different but the concepts are recognizable. These five criteria lay out a good way for a FCPA compliance practitioner to think through an assessment of a company’s FCPA, Bribery Act or other anti-corruption and anti-bribery program.

I.                   Control Environment

Under this criteria, a candidate must demonstrate its commitment to compliance at the highest levels of the organization. Can you say ‘Tone at the Top’? But more than simply the right words, a company must demonstrate this criteria by actually doing. Therefore, this will include written policies, training for key import personnel and company-wide cross training.

II.                Risk Assessment

At least annually, a company should perform a risk assessment to determine which areas of import compliance are the most subject to error or non-compliance. In addition to assessing traditional high risk areas, a company should consider risk which may “flow from changes in personnel or changes in internal controls.” Additionally both transactions and internal controls should be reviewed.

III.             Control Activity

This criteria is defined as the creation of procedures to ensure that the senior management directives as specified in Criteria I – Control Environment are carried out. While Criteria I speaks to overall policies, Criteria III focuses on the procedures to implement the policies.

IV.              Information and Communication

This criteria has two components. First, company personnel are charged with keeping themselves informed of changes to trade regulations and how any changes might effect a company’s operations. Second, this information must be communicated and disseminated throughout the company to all “departments touching on the trade function.” The author quotes from the ISA Handbook, “Pertinent information related to CPB activities is identified, captured and distributed to the right people in sufficient detail, in the right form and at the appropriate time to enable them to carry out their duties…”  I could not have said it better myself.

There are many aspects to compliance convergence. Many practitioners view it as requiring many different types of compliance. This is certainly a valid view. However it can also be used as an opportunity to bring in compliance expertise that may already exist in your company to assist in an anti-corruption compliance program. This Border and Customs Protection format for self-assessment is a guideline that the FCPA practitioner can use as a basis self-assess a company’s compliance program. If you are implementing an anti-corruption program or looking at an anti-bribery program required under the UK Bribery Act there may be resources which you can tap into which exist within your company.

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They’re Back!!!!!! Howard Sklar and I discuss all things FCPA and compliance (well mostly all things) on the return of This Week in FCPA, Episode 16See and hear Howard go on several rants as we discuss Haiti Teleco, denial of the ICE Mandamus Petition, Oracle’s announcement of a FCPA investigation and the post-trial filings in the Lindsey Mfg. case.

On Thursday, Sept. 15, my colleague Mary Jones and I will discuss how a Best Practices  compliance program can assist you in a FCPA compliance investigation, in a webinar hosted by World-Check and Ethisphere. Mary will discuss her experiences at Global Industries in a multi-year, world-wide FCPA investigation and how Global Industries came out with a Non-Prosecution Agreement. For registration and information, click here.

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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 13, 2011

The Compliance Champion: Getting People to Solve Problems Without You

One of new areas of a best practices compliance program is to engage a company’s non-legal and non-compliance department employees in a role of “Compliance Champion”. Such a concept has several different functions: it allows a small compliance department to leverage resources and to expand the compliance footprint in the workforce and it (hopefully) fosters a workforce that is more committed to compliance through non-lawyer participation. One of the goals of such a Compliance Champion program is to train such employees to be your first line of compliance people on the ground, both to respond to routine queries and to alert the Legal/Compliance Department if a problem needs to be escalated.

This new best practice occurred to me as I read an article in the September issue of the Harvard Business Review, entitled “Smart Rules: Six Ways to Get People to Solve Problems Without You” by Yves Morieux. Bringing a ‘Compliance Champion’ to a business unit usually means bringing a business person, new to the compliance field to a role which may have a different focus than their previous experience. It can often add complexity to their existing job. Morieux speaks to the issue of managing complexity and the “smart rules” set out in the article can assist the transition of an employee into a Compliance Champion.

Rule 1 – Improve Understanding of What Co-Workers Do

The key here is for the Compliance Champion to understand what is being asked of them, the goals and challenges they are expected to meet and the constraints under which they operate within their role as Compliance Champion. Clearly the dissemination of such information is the responsibility of the Compliance Department through training. However, this type of information also comes from observation and interaction; the ‘Doing” part of on the job training.

Rule 2 – Reinforce People Who Are Integrators

This involves the inevitable tension between the Compliance Department which creates the standards and process and the business unit which is involved in sales and marketing. One of the key roles that a Compliance Champion can fulfill is to interact with these multiple stakeholders. As a business unit representative, often times, the Compliance Champion can obtain cooperation more quickly and at a greater frequency than the Compliance Department. The Compliance Department should increase the discretionary powers of the Compliance Champion as they become more comfortable and proficient in the role.

Rule 3 – Expand the Amount of Power Available

This is somewhat related to a portion of the points raised in Rule 2. However, this Rule 3 has a different focus. Recognizing that people always dislike losing power within an organization, your company will need to make certain that the Compliance Champion role is created without taking power away from others within the company. You should make certain that the Compliance Champions have new and different responsibilities from others within the organization.

Rule 4 – Increase the Need for Reciprocity

Morieux defines this Rule as expanding “the responsibilities of integrators beyond the activities over which they have direct control.” This means that you must challenge the Compliance Champions to negotiate and make trade-offs rather than simply avoid issues. By expanding the goals of the Compliance Champions, you will encourage them to work cooperatively with the business unit.

Rule 5 – Make the Employees Feel the Shadow of the Future

Morieux posits that the longer that “it takes for the consequences of a decision to take effect, the more difficult it is to hold a decision maker accountable.” The Compliance Champions need to feel that there will be consequences to their actions so that the “shadow” of the future needs to be relevant to them. This can be accomplished by reducing lead times on the projects involving Compliance Champions. Another technique might be to more regularly review measurable performance outputs. The key here is to make the Compliance Champion feel that their work is real, relevant and the final future of their work is close by.

Rule 6 – Put the Blame on the Uncooperative

There must be accountability for those who fail to cooperate in ways which cause project delays. This can be done by adjustment of a company reward criteria, such as bonuses. If a Compliance Champion says they need more resources to complete a project and the resources are provided and they fail to do so, a bonus reduction should be made. But this means more than simply sanctioning the Compliance Champion. Once there is a communication of a problem, such as the business unit failing to provide information required by the Compliance Champion to complete their assigned task, then the business unit personnel involved also need to have some type of sanction as well.

The author notes that not all of these Rules are required to have a successful management of complexity. I would submit that the same is true for a business unit employee who is assigned to be a Compliance Champion. Nevertheless, the use of a business unit Compliance Champion can help to manage the compliance process in a manner which enhances the overall compliance process and, more importantly, the overall compliance message. Greater diversity in the compliance approach can allow for customized solutions with significant business unit input and allow for greater business unit buy-in for the compliance solution.

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They’re Back!!!!!! Howard Sklar and I discuss all things FCPA and compliance (well mostly all things) on the return of This Week in FCPA, Episode 16See and hear Howard go on several rants as we discuss Haiti Teleco, denial of the ICE Mandamus Petition, Oracle’s announcement of a FCPA investigation and the post-trial filings in the Lindsey Mfg. case.

On Thursday, Sept. 15, my colleague Mary Jones and I will discuss how a Best Practices  compliance program can assist you in a FCPA compliance investigation, in a webinar hosted by World-Check and Ethisphere. Mary will discuss her experiences at Global Industries in a multi-year, world-wide FCPA investigation and how Global Industries came out with a Non-Prosecution Agreement. For registration and information, click here.

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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 12, 2011

Global Compliance and FCPA: 20 Ideas from Thomas Fox for Playing by the Rules

Filed under: Corporate Law Report,FCPA — tfoxlaw @ 1:50 am
Tags: ,

Ed. Note-I was fairly honored and humbled to find this post last Friday wherein the Corporate Law Report collected twenty ideas I have set forth in my blog postings over the past couple of years. I was honored because someone else thought my postings were of note. I was humbled because the editor laid it out much better than I ever could have done. I ask and received permission to reprint it, in its entirety.

Today’s post brings together some of the collected writings of Foreign Corrupt Practices Act attorney Thomas Fox, who provides regular updates on a wide variety of global compliance topics aimed at businesses seeking to operate profitably, legally and ethically around the world:

1. Whatever business you are in, the requirement is for you to understand what laws are applicable to your business. If you have to hire local lawyers in the jurisdiction where you are doing business … don’t whine about it, hire them. (The Day the Music Died: Compliance Convergence and the Lacey Act)

2. Identify the requirements of anti-corruption laws in all the countries in which your company does business. This is critical in understanding the key differences in requirements that your company may be facing. (Using the Octagon: Lozier’s Eight Steps to Further Your Compliance Program)

3. If there are serious allegations made concerning your company’s employees engaging in criminal conduct, a serious response is required. Your company needs to hire some seriously good lawyers to handle any internal investigation. (WHO Should Handle Serious Internal Investigations)

4. One the criticisms of the Foreign Corrupt Practices Act (FCPA) is that it provides little guidance as to what constitutes an instrumentality under the Act and attendant question of who is a foreign governmental official. (Reading a Crystal Ball: Guidance on Instrumentality under the FCPA)

5. While many companies here in the US complain about the enforcement of the Foreign Corrupt Practices Act … just imagine how they might feel about paying a multi-million dollar fine for a situation in which no bribery was proven. (The FSA Bares its Teeth: Be Aware of International Enforcement Regimes)

6. Just imagine how many jobs that Avon could have created if it had not engaged in “possible” FCPA violations and did not have to spend north of $100 MM to internally investigate these “possible” FCPA violations. (Silver Lining to the FCPA or How to Create Jobs by Following the Law)

7. These steps need to be taken by all US Companies entering into, or already engaged in, a relationship with an Agent as the FCPA applies to all US Companies, whether public or private. (Due Diligence, Due Diligence and More Due Diligence)

8. If the inherent message of the C-Suite is to make quarterly or other numbers, and the pressure is solely on that issue, the Board needs to understand that a train wreck may be coming. (Casey Jones or How to Stop a Compliance Train Wreck)

9. Many of us who came to compliance through a corporate legal department simply think that explaining a project logically is sufficient and expect it to be accepted, that is certainly our training. However, in the Compliance Department there may be a greater need to request funding for new project as the parameters of a best practices compliance program expands. (Branding Your Compliance Project)

10. As much as companies try to make all employees conform to one compliance program across the world, it is simply not possible to do so. … Customs and relations are different across the globe. There needs to be some cultural sensitivity. (Fostering Compliance Across Your Company)

11. Mehra and Agbool argue that a strong internal compliance program should be an integrated part of corporate social responsibility. They believe that businesses should be able to identify and mitigate against bribes and corruption … to keep markets competitive and to ensure that their activities are benefiting the societies in which they operate. (Corporate Social Responsibility and the FCPA)

12. One of the purposes of the compliance assessment is to determine if any new elements of an effective compliance program have been developed in the past year and if they should be incorporated into your company’s compliance program. (How Cyrano de Bergerac Portends the Compliance Assessment)

13. So the lesson learned from News Corp’s 56 page B+ rated Code of Conduct is that such a Code is worthless unless trained upon and actually implemented by management. (Cadel Evans and the Code of Conduct)

14. … self-disclose, clean house, remediate and implement a best practices compliance program and your company may well be able to extricate itself without landing on the “Top Ten of All Time FCPA Settlement List”. (Best Practices During an FCPA Enforcement Action: The Armor Holdings NPA)

15. Nortz has put together a cogent process to utilize when bringing a group of non-compliance professionals together. A Chief Compliance Officer who is attempting to co-op or obtain company-wide buy-in to help solve a compliance issue may well wish to utilize some or all of these techniques. (How to Engage the Business Unit: Another Perspective-Swarm Ethics)

16. … what can you do as a Law or Compliance Department member to facilitate the creation, implementation and sustainment of a strong ethical culture, where such initiative is not found in the company leadership, and play with the weak compliance hand you may have been initially dealt. (Don’t Fold “Em: Making the Case for Ethical Leadership)

17. In addition to supporting internal investigations, I believe that HR can be … a key component in changing or maintaining your company’s compliance DNA. (Using HR to Change your Company’s Compliance DNA)

18. In addition to the area of discipline which may be administered after the completion of any compliance investigation, you must also place compliance firmly as a part of ongoing employee evaluations and promotions. (Henry II Revisited: The Fair Process Doctrine as a Key Component of a Compliance Program)

19. While I do not believe that most Compliance Departments will face the PR disaster that United has had to endure over “United Breaks Guitars”, the failure to have a fair and equitable process for managing employee compliance complaints … can lead to very serious financial consequences. (United Breaks Guitars: Lessons Learned for Companies and Whistleblowers)

20. The Board must have quarterly or semi-annual reports from a company’s Chief Compliance Officer to either the Audit Committee or the Compliance Committee. (The Role of the Board and Compliance)

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They’re Back!!!!!! Howard Sklar and I discuss all things FCPA and compliance (well mostly all things) on the return of This Week in FCPA, Episode 16. See and hear Howard go on several rants as we discuss Haiti Teleco, denial of the ICE Mandamus Petition, Oracle’s announcement of a FCPA investigation and the post-trial filings in the Lindsey Mfg. case.

On Thursday, Sept. 15, my colleague Mary Jones and I will discuss how a Best Practices  compliance program can assist you in a FCPA compliance investigation, in a webinar hosted by World-Check and Ethisphere. Mary will discuss her experiences at Global Industries in a multi-year, world-wide FCPA investigation and how Global Industries came out with a Non-Prosecution Agreement. For registration and information, click here.

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This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 9, 2011

The Day the Music Died: the Lacey Act and Compliance Convergence

Most people will recognize the name of Gibson Guitar, one of the most widely known makers of guitars in the United States. Unfortunately the company was recently raided by the US Fish and Wildlife Service for a failure in the compliance arena. However, it was not for a violation of the Foreign Corrupt Practices Act (FCPA); UK Bribery Act; OFAC or other more widely recognized anti-corruption statutes. Gibson Guitar was raided through an investigation regarding alleged violations of the Lacey Act. As reported in the September 1 edition of the Wall Street Journal (WSJ), in an article entitled “Gibson Guitar Wails on Federal Raid” James Hagerty and Kris Maher reported about an August 24 raid by the US Fish and Wildlife Service. All of this reminded me of my ‘This Week in FCPA’ colleague Howard Sklar’s multiple discussions of compliance convergence.

The Lacey Act

The 111-year-old Lacey Act, originally passed to protect wildlife, was expanded in 2008 to cover wood products. This expansion of the Lacey Act requires companies to “make detailed disclosures about wood imports and bars the purchase of goods exported in violation of a foreign country’s laws.” In a subsequent WSJ article on September 2, entitled “Forestry Law Splits Wood Industry”, the same reporters stated that “that companies need to be more diligent about ensuring their entire supply chain is sourcing wood legally. The authors also quoted Leonard Krause, a Lacey Act consultant who is advising his clients to retain local counsel in the countries where the wood is purchased to make sure that the wood is not exported in violation of local law.

The Allegations

According to the American Shipper, in an article entitled “Lacey Act ensnares Gibson Guitar Corp.”, the Fish and Wildlife Service reportedly made two allegations in its affidavit, to obtain a search warrant for the raid. The first was that product in question “was exported from India by Atheena Exports under an incorrect tariff code (HS 9209), allegedly to avoid the Indian government’s prohibition on export of sawn wood products (HS 4407), and was declared upon import as finished veneer (HS 4408).”  The second was that Gibson Guitar was not identified as the end user. The importer of record, Luthier Mercantile International, listed itself as the end user. The Lacey Act provides strict liability to a company for those in its supply chain.

Compliance Convergence

So how does a company, or indeed an entire industry subject to the Lacey Act, manage all of these risks? I suppose the first thought would be to only buy American but that thought is probably as unrealistic as a US based energy company not doing business overseas because of the FCPA. No, I think the answer is that a company must first identify the risks it faces and then manage those risks. Here the primary risks would appear to be knowledge of local laws and liability for the acts of those in your supply chain. I would submit there are two keys to managing these risks. The first is Process, Process and Process. The second is Document, Document and Document.

Whatever business you are in, the requirement is for you to understand what laws are applicable to your business. If you have to hire local lawyers in the jurisdiction where you are doing business to ascertain if your exports violate local law, don’t whine about it, hire them. If your company has strict liability for those in your supply chain, engage in due diligence, train those vendors in the law and your requirements and manage those relations going forward. All of the above should be documented so that if your company is investigated it can produce those records in short order. Talking about unfair 111 year-old laws will not get you much sympathy, from the US Department of Justice, the US Fish and Wildlife Service or a Federal Judge.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 8, 2011

The United Nations Convention against Corruption: A New Focus?-Part II

Ed. Note-Yesterday we began a two part series on the attempt by the NGO SERAP to invoke the United Nations Convention against Corruption on certain FCPA related matters. Today we conclude our series. This article is written jointly with my colleague, Mary Shaddock Jones. We have kept the article’s original numbering so we apologize for any confusion. Part I of this series may be viewed here

E.        Reconciliation of the Various UNCAC Provisions

How do we reconcile the various Articles under the UNCAC with the statements contained in the Nigerian Tribune? If the UN Convention does not grant individuals a private right of action under Article 35, then why would SERAP in the petition to the EFCC be referring to the UN Convention against Corruption? The two UNCAC articles appear to have a different focus.  Article 35 would appear to focus on permitting the entities or parties damaged by the bribery to have the ability to bring an action for damages within the country in which the bribery occurred.  To see how this works, we have substituted the word “Nigeria” in Article 35 instead of “Each State Party”:

“Nigeria (as a State party)  shall take such measures as may be necessary, in accordance with principles of its domestic law, to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation.

Article 53 would appear to focus on the ability of those persons or entities damaged to recover proceeds or property from another “State Party” which may have collected the proceeds or property resulting from the corrupt act. Again, to better illustrate this premise, we have substituted the word “Nigeria” and “United States” in Article 53 instead of “Each State Party

The United States (as a “State Party”) shall, in accordance with its domestic law:

(a) Take such measures as may be necessary to permit  another State Party (i.e. Nigeria) to initiate civil action in its (i.e. United States) courts to establish title to or ownership of property acquired through the commission of an offence established in accordance with this Convention;

(b) Take such measures as may be necessary to permit its (i.e. United States)  courts to order those who have committed offences established in accordance with this Convention to pay compensation or damages to another State Party(i.e. Nigeria)   that has been harmed by such offences; and

(c) Take such measures as may be necessary to permit its courts (i.e. United States)  or competent authorities (i.e. DOJ/SEC?), when having to decide on confiscation, to recognize another State Party’s (i.e. Nigeria) claim as a legitimate owner of property acquired through the commission of an offence established in accordance with this Convention.

It may be that SERAP is attempting to force the EFCC to use Article 35 as the basis of an action in Nigerian courts against the companies who have entered into settlement agreements with the U.S., U.K. and/or Germany or Article 53 as the basis of an action in the U.S. against the U.S., (or U.K. and/or Germany) to recoup a part of the “bounty” collected as a means of “equalizing” the “disparity in payment of damages” as referenced in the SERAP article.  Remember- the response by the EFCC in Rasheed’s article was that ““The Economic and Financial Crimes Commission (EFCC) has agreed to seek further damages against multinational companies found to have violated Nigerian laws while operating the companies.” Is a threat of an Article 53 based enforcement action what is causing “ripples” in the DOJ?  It may well be so, because an action such as this would be a sea change in anti-bribery and anti-corruption enforcement. An enforcement action based upon Article 53 could allow a country such as Nigeria to come into a U.S. court and seek compensation from a U.S. company which has committed bribery in Nigeria or require the DOJ/SEC to recognize a foreign country which has ratified the UNCAC  as the “legitimate owner” of profits disgorged or fines and penalties paid to the U.S. government as a result of a FCPA violation.   We should note that Article 2 of the UNCAC defines “property” as “assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets”. It also defines “proceeds of crime” as “any property derived from or obtained, directly or indirectly, through the commission of an offence”.   We do not believe that the intent behind the definition of “property” or “Proceeds of crime” or of Article 53 to include U.S. fines and penalties imposed as a result of the crime.  It could, however, encompass any profits obtained as a result of the crime.

3. Supply Side Solution v. Demand Side Solution

The US Foreign Corrupt Practices Act (FCPA) is a demand side solution to the issues of bribery and corruption. Stephanie Conner, writing in the FCPA Blog, has termed the FCPA as “a demand-side tool to reduce corruption in the developing world”. Hence there is no penalty for accepting a bribe under the FCPA. The FCPA simply aims to ensure that relevant actors do not provide monetary lifelines to the autocrats and oligarchs who will be threatened by the advancement of their people. The U.K. Bribery Act takes this concept a step further by making illegal both the offering and receipt of a bribe or other corrupt inducements.

In the petition, SERAP provides a laundry list of companies who have settled with the United States for actions arising out of the Foreign Corrupt Practices Act, but have not either been prosecuted by the EFCC or  have entered into what is described by SEROP as “paltry” settlements with Nigerian Government.

It may well be that SERAP is more concerned about the EFCC extracting more money from the “supply” side of the equation based upon announced settlement amounts with the United States than it is with prosecuting in-country government and public officials at the local, state and federal levels accountable for acts of corruption, i.e. the “demand” side of the equation.  If it is the latter, focusing on the demand side, we believe that this entirely appropriate and an effective mechanism to combat bribery and corruption. This is because the U.S, U.K. and Germany and other countries who have enforced their own anti-bribery and anti-corruption laws, cannot win the war against corruption on their own or even collectively through the “supply” side of the equation.  Nigeria, along with the other countries with high corruption indexes must focus on the “demand” side of the equation.   Bribery does not exist with out both – demand and supply.

However if SERAP’s Petition is simply brought to squeeze more money out of the “supply” side, we believe this focus is misplaced as  corruption will not be defeated without as much or more focus on the “demand” side.  The sad fact is that the demand for bribes in Nigeria is pervasive.  That is why it received the score of 2.4 in the 2010 Transparency International Corruption Perceptions Index. SERAP and the EFCC should focus on increasing the Nigerian governments’ efforts to investigate and prosecute corrupt government officials in their country who demand and accept bribes, as the next step towards removing bribery and corruption from international transactions.

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Mary Shaddock Jones, Attorney at Law and former Assistant General Counsel and Director of Compliance at Global Industries, Ltd. can be reached via email at  msjones@msjllc.com or via phone at 337-515-8527 . I can be reached at tfox@tfoxlaw.com. 

This article originally appeared on kyc.360.com, a site devoted to the Anti-Money Laundering community. 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 7, 2011

The United Nations Convention against Corruption: A New Focus?-Part I

Ed. Note-today I begin a two-part series on the attempts to invoke the United Nations Convention against Corruption in the FCPA context. This article is written jointly with my colleague Mary Shaddock Jones. 

In an article published in the August 21, 2011 edition of the Sunday Nigerian Tribune, entitled “Corruption in Nigeria:  Multi-nationals pay $3.2 b fine”; author Olawale Rasheed discussed the petition filed on August 2, 2011 by the Socio-Economic Rights and Accountability Project (SERAP) against the Nigerian Economic and Financial Crimes Commission (EFCC). The Petition sought to have the EFCC “take steps to seek adequate damages and compensation against multinational corporations who have been found guilty in the US for committing foreign bribery in Nigeria, and to take all necessary steps to effectively bring to justice the Nigerian officials complicit in such cases of bribery.”

Rasheed reported that “The non-governmental organization (SERAP) stated further that the penalty disparity violates the fundamental provisions of the United Nations Convention against Corruption (UNCAC) whose Article 35 provides that persons who have suffered damage as a result of an act of corruption have the right to adequate damages and compensation.” Rasheed ended by stating that “While the EFCC was yet to reportedly act on the petition, the possibility of such companies paying another fine to the Nigerian anti-corruption body was generating ripples within the American Department of Justice which administers the Foreign Corrupt Practices Act.”

The next day there was a follow up article was published in the Nigerian Tribune, authored by Tunde Oyesina which stated that the “Economic and Financial Crimes Commission (EFCC) has agreed to seek further damages against multinational companies found to have violated Nigerian laws while operating the companies.” The article continued stating “Responding to SERAP’s request, EFCC’s Director of Operations, Mr. Ibrahim Lamorde said: ‘I write to acknowledge receipt of your letter dated August 2, 2011 and to inform you that all the issues raised therein would be appropriately and fully addressed’.”

These articles were intriguing in a variety of ways.   What is SERAP? What is their mission? On what basis can the EFCC bring an action in Nigeria against multinational corporations who have been found guilty in the US for committing foreign bribery in Nigeria?   Does the UNCAC grant a private right of action for foreign counties or foreign individuals in the U.S. for violations of Nigerian law? And finally, on what basis did the author of Sunday’s article have reason to believe that the “possibility of such companies paying another fine to the Nigerian anti-corruption body was generating “ripples” within the DOJ?

Let’s consider the issues one at a time:

  1. What is SERAP and what is their mission?

SERAP has a website (http://www.serap-nigeria.org/) which provided some good information.  According to the website:

“The Socio-Economic Rights and Accountability Project (SERAP) is a non-governmental, non-profit organization established in 2004, under the Companies and Allied Matters Decree 1 of 1990 of the Republic of Nigeria. SERAP aims to promote transparency and accountability in the public and private sectors through human rights”.

“In a country where systemic corruption and the resulting poverty, inequality and discrimination deprive many Nigerians of dignity and freedom to explore ways towards development and prosperity, we work to hold government and public officials at the local, state and federal levels accountable for acts of corruption which are conducive to violations of socio-economic rights of citizens. SERAP also aims to ensure Nigeria’s full compliance with the human rights and anti-corruption treaties to which it has voluntarily subscribed”.

2.    What rights are granted under the United Nations Convention against Corruption?

The petition filed by SERAP refers to possible violations of the UN Convention against Corruption by the EFCC.  Rasheed stated “The failure by the Nigerian government to ensure that adequate damages are paid in proven cases of foreign bribery in the country constitutes a violation of the international legal rights of the deprived, and may itself constitute an international wrong.”   Rasheed later in the article notes that the group (SERAP) argued that, “The disparity in payment of damages is unfair and violates the fundamental provisions of the UN Convention against Corruption, which Nigeria has ratified”.  “In particular, Article 34 obligates member states to address consequences of corruption, and to consider any remedial action.  And Article 35 provides that persons who have suffered damage as a result of an act of corruption have the right to adequate damages and compensation.”  It is curious that the newspaper article referred only to Article 34 and Article 35 of UNCAC (which articles focus primarily on the recovery of damages) and not include any references to Article 16 which specifically addresses  in paragraph 2  the obligation of each State party to consider establishing as a criminal offense the solicitation or acceptance of a bribe by a public official. “

A.                Article 34- Consequences of acts of corruption

Article 34 of the UNCAC provides that “With due regard to the rights of third parties acquired in good faith, each State Party shall take measures, in accordance with the fundamental principles of its domestic law, to address consequences of corruption. In this context, States Parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action”. 

B.        Article 35- Compensation for damage

Article 35 of the UNCAC, specifically provides that “Each State Party shall take such measures as may be necessary, in accordance with principles of its domestic law, to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation.  According to footnote #60 on page 345 of The Foreign Corrupt Practices Act and the New International Norms, Second Edition by Stuart H. Deming  (Section of International Law American Bar Association), “The Senate Foreign Relations Committee agreed with the position taken by the Secretary of State in her letter of transmittal to the U.S. Senate of the UN Convention.” The Secretary of State’s letter provides in part that “It should be noted that nothing in this article (referring to Article 35) should be interpreted as requiring the United States to create a private right of action under the Foreign Corrupt Practices Act or as expanding the scope of the Alien Tort Statute to permit foreigners to litigate corruption claims in U. S. Courts”.

C.      Article 16-Bribery of foreign public officials and officials of public international organizations

Article 16 , Section 2 of the UNCAC provides that “Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the solicitation or acceptance by a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.”

We recognize that the UNCAC does not mandate that each State Party enact legislation prohibiting the solicitation or acceptance of a bribe from a foreign official. However, there are local laws in Nigeria which do make the solicitation or acceptance of a bribe by a foreign official illegal.  According to Anti-Corruption Regulation 2011 published by “Getting the Deal Through” under Nigerian law a public official who seeks or receives any material benefit for him or herself or for any other person or who agrees or attempts to receive such material benefit on account of any action taken by him or her that is connected with the discharge of his or her official functions is guilty of corruption. Similarly, any person who gives or offers to give a public official a material benefit on account of any action to be taken by the public official in his or her official capacity is guilty of corruption.

The newspaper article did urge EFCC to “take all necessary steps to effectively bring to justice the Nigerian officials complicit in such cases of bribery”; however, it did not refer to any local Nigerian law only the UNCAC.  In addition, while the newspaper articles did not specifically refer to Article 53 of the UNCAC, in order to make sense of some of the comments contained in the articles, we believe it is important to examine Article 53 of the UNCAC as well.

   D.      Article 53-Measures for direct recovery of property

 Each State Party shall, in accordance with its domestic law:

(a) Take such measures as may be necessary to permit another State Party to initiate civil action in its courts to establish title to or ownership of property acquired through the commission of an offence established in accordance with this Convention;

(b) Take such measures as may be necessary to permit its courts to order those who have committed offences established in accordance with this Convention to pay compensation or damages to another State Party that has been harmed by such offences; and

(c) Take such measures as may be necessary to permit its courts or competent authorities, when having to decide on confiscation, to recognize another State Party’s claim as a legitimate owner of property acquired through the commission of an offence established in accordance with this Convention.

————————————————————————————————–

Mary Shaddock Jones, Attorney at Law and former Assistant General Counsel and Director of Compliance at Global Industries, Ltd. can be reached via email at  msjones@msjllc.com or via phone at 337-515-8527 . I can be reached at tfox@tfoxlaw.com. 

This article originally appeared on kyc.360.com, a site devoted to the Anti-Money Laundering community. 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. 

© Thomas R. Fox, 2011

September 6, 2011

Ride ‘Em Comrade: A Foreign Governmental Entity May Be Coming to Texas

I wrote, somewhat tongue in cheek, a post entitled “Take Me Out to the (FCPA) Ballgame” about an offer to purchase the Los Angeles Dodgers for a cash price of $1.2bn by a group which included “certain state-owned investment institutions of the People’s Republic of China”. If such a sale went through, I questioned whether such investment might make the Dodgers a governmental instrumentality, thereof, under the Foreign Corrupt Practices Act (FCPA). However, this question may become more relevant in the United States in another transaction that was announced last week which has come to fruition.

In a September 1, 2011 article in the New York Times, entitled “Memo to Exxon: Business with Russia Might Involve Guns and Balaclavas”, Andrew E. Kramer reported that Exxon signed a Joint Venture (JV) deal with the Russian state owned oil company Rosneft. Kramer stated that through this JV Exxon would explore for oil in the Russian sector of the Arctic Ocean. While the Wall Street Journal (WSJ), in an August 31, 2011 article, reported that financial terms for the Arctic Ocean JV had not yet been finally negotiated and on August 30, 2011, Newsday reported that Rosneft would own 66.7% of the shares in the JV. Additionally, Rosneft would “gain access to Exxon operations, including oil fields in Texas and the Gulf of Mexico.” The WSJ was more specific in noting that “Rosneft will be able to purchase stakes in some Exxon projects in the U.S., including deep-water Gulf of Mexico exploration and onshore oil fields in Texas. That would mark the first time a state-controlled Russian oil company acquired ownership stakes in U.S. oil and gas assets.”

I have not been able to find any report of the interest to be owned by Rosneft in the Gulf of Mexico properties or the onshore fields in Texas. Newsday reported that “Rosneft will be offered an equity interest in Exxon exploration projects in North America, including deep-water Gulf of Mexico and fields in Texas, as well as in other countries.” All of the above may well lead to some very interesting questions regarding the application of the FCPA.

I do not think that there would be any question that the FCPA would apply to the Arctic Ocean JV between Exxon and Rosneft. Under any analysis currently used, a more governmental ownership of 66.7% would be enough to make clear that the FCPA should apply. This would be true even under the analysis proposed by the US Chamber of Commerce to limit FCPA jurisdiction to any JV which has 50% ownership by a foreign government or foreign governmental entity.

The more interesting, or perhaps more troubling, question may well come from the offshore Gulf of Mexico properties or the onshore properties in the state of Texas. As stated in the Newsday article, Rosneft would be offered “equity interest” in these properties, but stated no amount. There was nothing to indicate whether Rosneft would be a passive investor or the lead developer in these properties. The Newsday article also reported that “The deal thus fulfills a demand for reciprocity often made by Putin, helping Rosneft, which already works with Exxon offshore Russia’s Sakhalin Island, toward its long-term goal of being a global energy major.” Is the fact that the Arctic Ocean deal required a reciprocal US based transaction of any import for an FCPA analysis?

At this point I would advise any energy industry legal or compliance officials in Houston to watch this matter closely. There may be (FCPA) implications from this deal all the way through the industry.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

September 2, 2011

Take Me Out to the (FCPA) Ballgame

Filed under: FCPA,FCPA Professor,Sovereign Wealth Funds — tfoxlaw @ 8:43 am
Tags: ,

It is September and the pennant races are taking hold. The Yankees and Red Sox just completed a 3 game series with great baseball; dramatic home runs, retaliatory beanings and the inevitable scuffles. So the National Pastime is rounding into its most enjoyable time of the year. However, for shear entertainment this year nothing can beat the Herculean struggle that is the battle between Major League Baseball (MLB) and the Los Angeles Dodgers.

Let’s briefly recap, in April MLB took control of the Dodgers and assumed day-to-day operations of the club, from owner Frank McCourt. In June McCourt countered by placing the Dodgers in bankruptcy. There have been various legal maneuverings and machinations typical to bankruptcy courts which are better suited to the E Entertainment network than ESPN. But something occurred yesterday which would even interest the Foreign Corrupt Practices Act (FCPA) practitioner.

In a September 1 article, in the Los Angeles Times, Bill Shaikin reported that a group headed by Bill Burke offered to purchase the Dodgers for a MLB record of $1.2bn, all in cash. The interesting part of this, from the FCPA perspective,  is that some unstated portion of the funding was by Chinese investors, who were only said to be “certain state-owned investment institutions of the People’s Republic of China”. Does that sound like a government owned Sovereign Wealth Fund (SWF) to you? Shaikin’s article did not report on how much of the $1.2bn bid was funded by this governmental entity as he reported that in addition to the SWF money, there were other ‘unidentified American investors.” So what are the consequences if over 50% of the “all in cash” bid comes from “certain state-owned investment institutions of the People’s Republic of China”?

As reported by the FCPA Professor in a blog entitled, “House Hearing-Overview and Observations”, former Attorney General Mike Mukasey’s testimony focused on this issue of ownership. According to Mukasey, “majority ownership is the most plausible threshold” for whether a state-owned or state-controlled enterprise constitutes a foreign government “instrumentality.” So if SWF puts up more than 50% of the money to purchase the Dodgers, are the Dodgers now an instrumentality of the Chinese government? If so are Dodger employees now “foreign officials” under the FCPA?

With that question in mind I wish a happy Labor Day Weekend to all. Watch some great baseball and ponder the following: Is that extra $5 you slip a Dodger employee for a better parking slot at Dodger Stadium next year a facilitation payment or is it a bribe paid to a foreign governmental official?

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

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