The Foreign Corrupt Practices Act: Compliance, Investigations and Enforcement

by Martin J. Weinstein, Robert J. Meyer and Jeffrey D. Clark

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ThE FOREign CORRuPT PRACTiCES ACT: COmPLiAnCE, invESTigATiOnS And EnFORCEmEnT

by Martin J. Weinstein, Robert J. Meyer and Jeffrey D. Clark

the foreign corrupt practices act: compliance, investigations and enforcement covers all aspects of the FCPA. This volume provides practical analysis of how hte FCPA’s antibribery and accounting provisions may apply to international business practices, and how companies and their executives can effectively mitigate the risks of criminal and civil enforcement actions. It will include analysis of the DoJ’s Guidance as soon as it is released, and includes analysis of the UK Bribery Act 2010.

identify the red flags of foreign corrupt practices risk

Under what circumstances will American companies and their officers and directors be held responsible for conduct of non-U.S. subsidiaries? What constitutes “knowledge” and “corrupt intent”? Find answers to these questions and many others.

Topics include:

• Analysis of the FCPA’s antibribery provisions, including exceptions and affirmative defenses

• Required recording-keeping procedures and internal controls

• Applicability of the FCPA to persons outside the United States

• Civil and criminal liability of individuals

• Elements the DoJ looks for in an organization’s compliance program

• Due diligence, training, and contractual safeguards to minimize liability

• Pros and cons of using the DoJ’s FCPA Opinion Procedure

• Liability for pre-acquisition practices of a newly acquired entity

• Conducting FCPA internal investigations and how to disclose the findings

• Multi-jurisdictional investigations, including gathering evidence and compelling testimony

• International regulation, with a focus on the UK, Germany and China

indispensable advice on avoiding Missteps and Minimizing liability

In a global economy, it is easier than ever for corporations to be blindsided by the consequences of improper actions occurring far away. The authors, practitioners who have handled the biggest and most complex FCPA cases, provide expert guidance for dealing with almost any FCPA-related eventuality. Whether you are exploring the “facilitating payment exception” or beginning an internal investigation, look no further than this important new book.

Martin J. Weinstein is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and leads the Compliance & Enforcement Practice Group in Washington, D.C. A former Assistant U.S. Attorney, he was lead prosecutor in the Lockheed case, and has since defended many of the most complex FCPA cases of the last 25 years. In 1995, the Attorney General presented Mr. Weinstein with The John Marshall Award for outstanding legal achievement in trial and litigation.

Robert J. Meyer is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and a member of the Compliance & Enforcement Practice Group in Washington, D.C. Mr. Meyer was a federal prosecutor in the U.S. Attorneys Office and the U.S. Department of Justice’s Public Integrity Section for over ten years, where he conducted several of the Department of Justice’s most high profile investigations and prosecutions, including two presidential investigations and several prosecutions of federal and state officials for bribery. He has conducted numerous domestic and international internal corporate investigations and regularly counsels corporations on compliance and enforcement.

Jeffrey D. Clark is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and a member of the Compliance & Enforcement Practice Group in Washington, D.C. A former Assistant U.S. Attorney in the District of New Jersey, where he was Deputy Chief of the Special Prosecutions Division and Deputy Chief of the Criminal Division, he was lead trial counsel in numerous high-profile public corruption prosecutions. He serves on the Board of Directors of TRACE International, an association of multinational companies dedicated to enhancing antibribery compliance, and is a past co-chair of the ABA Section of International Law Anti-Corruption Committee.

ABOUT THE AUTHOrs

#00719; looseleaf, one volume, approximately 800 pages; published in 2012, updated as needed. ISBN: 978-1-58852-182-8. Looseleaf print subscribers receive supplements. The online edition is updated automatically. Your purchase price includes the cost of any updates that may be issued within one year of your order.

ChAPTER 1An Overview and History of the FCPA• Overview of the FCPA• History of the FCPA

ChAPTER 2The Antibribery Provisions of the FCPA • Who Is Covered?• Jurisdiction • Anything of Value• Who Qualifies as a “Foreign Official”

or Other Covered Recipient?• What Constitutes Corrupt Intent?• How is the “Business Nexus”

Requirement Established?• The FCPA’s Exception and

Affirmative Defenses• Statute of Limitations• Penalties and Enforcement

ChAPTER 3The FCPA’s Accounting Provisions• Who Is Covered?• Books and Records• Internal Controls • Penalties and Enforcement

ChAPTER 4Issues Related to Non-U.S. Companies• Direct Liability of Non-U.S. Companies• Liability of U.S. Companies for the Acts

of Non-U.S. Subsidiaries• Liability against Non-U.S. Companies

Under Secondary Liability Theories

ChAPTER 5Liability of Individuals• Antibribery Liability• Liability for Books and Records and

Internal Controls Violations• Conspiracy and Aiding and

Abetting Liability• Liability of Foreign Officials Under

the FCPA

ChAPTER 6Complying with the FCPA: The Basics• Guidance on Compliance Programs• Elements of an Effective FCPA

Compliance Program • Travel and Entertainment• Per Diems

• Gifts• Facilitating Payments• Extortion• Charitable Contributions• Political Donations• FCPA Compliance Audits• The DOJ’s FCPA Opinion Procedure

ChAPTER 7Complying with the FCPA: Third-Party Relationships• Overview of Third-Party Management• Third-Party Relationships and Related

FCPA Risks• Due Diligence• Contractual Safeguards• Training• Monitoring• Special Considerations When Using

Government Officials or State-Owned Entities As Third Parties

ChAPTER 8Complying with the FCPA: Mergers, Acquisitions and Investment Transactions• FCPA Risks in Cross-Border

Transactions• Cross Border Mergers & Acquisitions• Non-U.S. Investments• Minority Interest Investments• Board Service

ChAPTER 9Conducting Effective FCPA Internal Investigations• Preliminary Considerations• Gathering and Reviewing Relevant

Documents and Other Data• Employee and Third-Party Interviews• Reports of Investigation• Interacting with External Auditors and

Other Outside Constituents• Responding to Investigative Findings• Disclosure to Enforcement Authorities

ChAPTER 10U.S. Government Enforcement of the FCPA• Criminal and Civil Enforcement

by DOJ• Civil Enforcement by the SEC• Corporate Compliance Monitors

• Other Statutes in the DOJ’s Arsenal• Preparing to Litigate Against the

Government• Collateral Consequences of an FCPA

Enforcement Action

ChAPTER 11Multi-Jurisdictional Investigations• Cross-Border Evidence Sharing• Extraterritorial Evidence Taking• Admissibility of Foreign Evidence• Privilege Issues• Coordinating Cooperation and

Settlement over Multiple Jurisdictions

ChAPTER 12Global Anticorruption Enforcement• International Anticorruption Efforts• Selected National Enforcement

Regimes

ChAPTER 13 The United Kingdom Bribery Act 2010• Jurisdiction under the Bribery Act• Financial or Other Advantage• The Offense of Bribing Another Person• The Offense of Being Bribed• Bribery of a Foreign Public Official• Failure of Commercial Organizations

to Prevent Bribery• Facilitation Payments• Liability of Senior Officers for

Company Offenses• Time Period to Bring Bribery Act

Prosecutions• Enforcement and Penalties

indEX

Summary Table of Contents for THE FOREIGN CORRUPT PRACTICES ACT: COMPLIANCE, INvESTIGATIONS AND ENFORCEMENT

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