FCPA Settlement Day: DOJ Guidance on the Best Practices of a Corporate Compliance Program


In what the FCPA Blog termed a day of making history “for the most companies to simultaneously settle FCPA-related violations, [the] Global logistics firm Panalpina and five of its oil-and-gas services customers resolved charges with the DOJ and SEC, and another customer settled with the SEC only”, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) announced settlements which totaled fines, penalties and profit disgorgements of over $236.5 million. The FCPA Professor noted that while the “DOJ and SEC enforcement actions principally focused on customs and related payments in Nigeria, but also including alleged improper conduct in Angola, Brazil, Russia, Kazakhstan, Venezuela, India, Mexico, Saudi Arabia, the Republic of Congo, Libya, Azerbaijan, Turkmenistan, Gabon and Equatorial Guinea.” He also noted that since July, “the U.S. government has brought FCPA enforcement actions totaling approximately $1.1 billion” in fines, penalties and profit disgorgement.

However more was announced yesterday than simply raw dollars. Each resolved enforcement action provided to the FCPA compliance practitioner significant information on the most current DOJ thinking on what constitutes a best practice FCPA program. Each of the Deferred Prosecution Agreements released yesterday, included an Attachment C, a document entitled “Corporate Compliance Program”. Each Corporate Compliance Program was the same in all the DPAs announced yesterday. Each Corporate Compliance Program detailed the latest best practices its internal controls, policies, and procedures regarding compliance with the Foreign Corrupt Practices Act (FCPA). (This same information was also attached to the Noble Non-Prosecution Agreement as “Attachment B”.)

The information included these collective Corporate Compliance Programs provides the FCPA compliance practitioner with the most current components that the Department of Justice believes should be included in a FCPA compliance program. Hence, this information is a valuable tool by which companies can assess if they need to adopt new or to modify their existing internal controls, policies, and procedures in order to ensure that their FCPA compliance program maintains: (a) a system of internal accounting controls designed to ensure that a Company makes and keeps fair and accurate books, records, and accounts; and (b) a rigorous anti-corruption compliance code, standards, and procedures designed to detect and deter violations of the FCP A and other applicable anti-corruption laws.

The Preamble to each Corporate Compliance Program noted that these suggestions are the “minimum” which should be a part of a Company's existing internal controls, policies, and procedures. Each Corporate Compliance Program had thirteen points which are set out below. They are:

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

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