One of the great things about blogging about the Foreign Corrupt Practices Act (FCPA), UK Bribery Act and ethics and compliance in general, is that practitioners will forward materials to me to review. Not only does this assist me in my legal practice (yes, I do practice law for a living) but it also provides me with a wealth of materials to write about and share with other compliance practitioners. This week I was the lucky recipient of one email with three such resources from Markus Funk, partner at the law firm of Perkins Coie. I would also note that Markus was the author, co-author or otherwise involved in publishing of all three articles.
The three articles are: (1) “Complying With the Foreign Corrupt Practices Act: A Practical Primer”, authored by the University of Chicago Law School’s Corporate Lab, co-sponsored by Microsoft, and published by the ABA Global Anti-Corruption Task Force; (2) “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act: Introducing the IP FCPA Decision Tree”, authored by Doug Sawyer and T. Markus Funk and published in the BNA Bloomberg Patent, Trademark & Copyright Journal; and (3) “Breaking Down the FCPA, Travel Act, and UK Bribery Act”, by T. Markus Funk, published in BNA Bloomberg White Collar Crime Report.
Complying with the FCPA: A Practical Primer
Whether you are new to the field of compliance or a long time practitioner, this 52 page guide is an excellent one-stop shop for any person who may need guidance under the FCPA. This is the result of the collaboration of several authors, law firms, companies and organizations and the stated purpose of the Primer for this report is to provide: (1) an overview of the FCPA; (2) an analysis of how the federal government – particularly the Department of Justice (the “DOJ”) – enforces the FCPA; and (3) a framework for developing effective compliance programs. It certainly fulfills these goals. The Primer used, as sources, the following materials: (1) the United States Attorney’s guidelines; (2) the United States Federal Sentencing Guidelines; and (3) the Organization for Economic Co-operation and Development’s (the “OECD”) Good Practice Guidance.
The Primer takes as its starting point the DOJ’s 13-point minimum best practices compliance program that is now routinely set forth in each Deferred Prosecution Agreement (DPA) and Non-Prosecution Agreement (NPA) entered into by the Department. A compliance practitioner is also provided with the legal underpinnings of the FCPA, the fundamental components of a best practices compliance program from the DOJ’s perspective and various metrics by which a company can measure and assess the effectiveness of a compliance program. To have all of this in a 52 page Primer is a much needed resource that can be used by all.
FCPA and Intellectual Property
In “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act: Introducing the IP FCPA Decision Tree” co-authors Doug Sawyer and T. Markus Funk discuss the FCPA and its “private bribery twin, the Travel Act” in the context of intellectual property (IP) protection. They note that the reality of 21st century business is that companies are valued largely on the basis of their intellectual property, transforming intellectual property protection into an increasingly central business interest. And with so many US and US-based companies ‘‘going global’’ IP is routinely, and simultaneously, owned and litigated in multiple jurisdictions. IP is, therefore, far from immune from FCPA or Travel Act issues and enforcement.
The authors list FCPA Red Flags in the IP context, which can be such actions (a) a patent being granted unusually quickly; (b) an opposition to a trademark being granted before the entire process has been completed; (c) “a foreign customs official robustly enforcing company A’s anti-counterfeiting agenda, while ignoring company B’s agenda.” To assist the IP practitioner, who may be new to FCPA compliance, or for the compliance practitioner, who may be new to IP issues, the authors conclude their article with a useful decision making tree as a guide to FCPA and Travel Act anti-bribery provisions which “graphically illustrates each analytical step at issue, explains how the Travel Act’s prohibition on ‘‘private’’ bribery fits into the overall anti-bribery puzzle, and seeks to provide a bird’s eye view of this often confusing legal framework.”
Breaking Down the FCPA and Travel Act
In “Breaking Down the FCPA, Travel Act, and UK Bribery Act”, sole author T. Markus Funk, provides the FCPA and Bribery Act compliance practitioner with three handy charts which illustrates the particular steps one must go through to analyze a claim for public corruption under the FCPA and how the Travel Act’s prohibition on private bribery fits into the overall anti-bribery puzzle; a chart explaining how the UK Bribery Act relates to organizations; and a chart which sets out the differences between the FCPA and the Bribery Act. Taken together, these three charts provide to the compliance practitioner with the ‘‘big picture’’ view of these three anti-corruption and anti-bribery laws. It is a very useful short guide to these three laws.
All of these articles fill a valuable niche for the compliance practitioner. I hope that you will review and use them in your practice going forward. I also hope that you will join me in thanking T. Markus Funk for not only authoring or assisting in authoring the above three resources but also for sending them along to me to pass along to you.
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 firstname.lastname@example.org.
© Thomas R. Fox, 2012