Cecil the Lion and Due Diligence Failures

by Michael Volkov

Lauren Connell, Managing Associate  at the Volkov Law Group, joins us again for a guest post.  

The “I didn’t know” defense is a tough one to sustain. Maybe you didn’t “know,” but should you have known? Were all the signs there but you looked the other way? Should you have asked more questions?  Is it fair to infer by your failure to act or ask questions that you “knew” you were violating a law or regulation?

The FCPA’s “knowing” standard is well-defined. The DOJ’s FCPA Guidance states that “Under the FCPA, a person’s state of mind is “knowing” with respect to conduct, a circumstance, or a result if the person: (i) is aware that [he] is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; or (ii) has a firm belief that such circumstance exists or that such result is substantially certain to occur. Thus, a person has the requisite knowledge when he is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.”

To put it simply, you cannot look the other way. If something seems off or wrong, you have to investigate. If your third-party agent promises huge returns but requires you to wire his payment to a bank account in his mother’s name in Malta, you have to got to ask questions. If your third-party asks for commission that is double what the market price is, you have to ask why. If your third-party refuses to show you his business license or answer your questionnaire at all, you should considering ending any potential relationship.

The knowledge standard for illegal lion hunts in Zimbabwe is not as well-defined. The Minister of Environment, Water, and Climate at Zimbabwe’s Parks and Wildlife Management, O.C.Z. Muchinguri, issued a statement on July 31 outlining the laws the American hunter, the now infamous Dr. Walter Palmer, his guide, and the landowner where the hunt took place, are alleged to have broken.

“I didn’t know,” says Palmer. Okay, but should [Palmer] have known?  That is the question that is asked in the FCPA context. I’m going to ask it here.

Should Palmer have known that this hunt was illegal? As a non-hunter that does not know all the facts, very few really, I can quickly point to several red flags that should have led Palmer to ask questions.

  • The fee he paid, $50,000 in a country where the highest government salary is $508 per month, was astounding. Did Palmer ask if that is what a legal lion hunt should cost?
  • Cecil was supposedly lured out of the park with food. Did Palmer ask why such seemingly obvious nefarious tactics were used?
  • Did Palmer ask to see his guides’ hunter’s permits and licenses?
  • Did Palmer ask why his guides were taking precautions to keep quiet, such as not using guns?
  • Did Palmer Google his guides’ names to see if any had a history of illegal hunting.

These are all basic questions and inquiries that Palmer should have asked.  Business managers have to ask analogous questions as part of a due diligence process designed to make “reasonable inquiries” on issues relating to potential risk of corruption. If a company fails to ask any questions, then the company runs the risk of acting with the requisite intent to violate the FCPA.

Thus far Palmer’s defense, at least to the public, is “That was never my intention.” In a country notorious for illegal trophy hunting that ranks 156/175 of countries in the Corruptions Perceptions Index, if Palmer intended to abide by the law, should he have asked a few more questions before he forked over fifty grand and drew back his bow and arrow?

From an anti-corruption perspective, this is a great example of the type of “look the other way” philosophy that is an easy trap for employees, managers, and executives to fall into. Palmer really really wanted that lion, just like your sales manager might really really want that contract. Palmer closed his eyes and did not ask questions; would your organization do the same?

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.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

Written by:

Michael Volkov

The Volkov Law Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.