Understanding the Foreign Corrupt Practices Act - FCPA (5 day)

Course Details

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The course will answer questions such as: +Who is a “government official?” Are state-owned enterprises covered by the FCPA? +Is a company responsible for potentially illegal payments made by a subsidiary? +How does a company establish a defence to a potential FCPA enforcement case? +What are the most common ways that subsidiaries conceal illegal payments? What is the parent company’s responsibility to detect and prevent these payments? +When are executives charged with a crime for FCPA violations? Why? +How can a business reduce its FCPA exposure? +Are any payments or reimbursements to foreign officials permitted by the FCPA? +What are attributes of a superior anti-corruption compliance program?

Learning Objectives

Understand the scope of the FCPA, as well as danger signals and red flags Increase your understanding of what is, and is not, an FCPA violation Know how enforcement cases get started and what to do if your company receives an enquiry Review your company’s FCPA compliance program against best practices Apply FCPA knowledge to examples of real-life situations faced by companies Anticipate what due diligence and other steps your company should take to reduce potential FCPA exposures or possible consequences for a violation Understand developing trends in FCPA cases, prosecutions, and settlements


Key FCPA Definitions and Concepts +“Issuers” +“Foreign official,” “candidate,” and “political parties” +“Illicit payments” and what is considered to be of “value” +“Securing an improper advantage” and “assist in obtaining or retaining business” +When “knowledge” is established +Parent-subsidiary liability +Liability of an acquirer for actions of an acquired company (successor liability) +Third-party payments: no defence Update November 2012: The SEC and DOJ Release The Resource Guide to the FCPA +Affirmative defences +Exemptions from the FCPA +SEC and DOJ guiding principles to enforcement cases +Self-reporting and cooperation +Hallmarks of an effective compliance program +Consequences ++Fines and monetary penalties ++Contract bars ++Criminal indictments and jail sentences +++Seimens employees and sales agents +++Peterson +++Esquenazi and Rodriguez ++Disgorgement ++Appointments of monitors or consultants +Plea agreements and deferred or non-prosecution agreements ++What factors will be considered by SEC and DOJ +++Mitigating factors +++Aggravating factors leading to additional/more severe charges ++What does “good behaviour” get the company? +Know these situations: When the SEC and DOJ did not take enforcement action +The role of whistle-blowers Red Flags and Key Issues +Offshore marketing agreements (Eli Lilly and Company) +Use of “agents” and “consultants” (Johnson & Johnson; ABB; Tyco) +Collusion with vendors and false invoices (Wyeth) +Indirect price discounts (Wyeth) +Phony vendors and shell companies (Oracle) +Sales commissions (Watts Water Technologies) +Leisure travel and gifts (Rockwell Automation; Biomet; Data Systems/Solutions) +Artificially inflated invoices (NORDAM) +Successor liability (Wyeth acquired by Pfizer) +Parent company liability for subsidiary actions (Smith & Nephew; Tyco) +Facilitating payments (Noble Corporation, Ruehlen and Jackson) +Government instrumentalities (Haiti Telecom) +Anything of value (Biomet, Tyco, Orthofix) and the importance of corrupt intent Critical Elements of Compliance and Risk Management Programs +What is “enhanced” compliance? +Mandatory due diligence ++Pre-merger ++Post-merger ++Sales agents ++Third parties +Proactive FCPA reviews and audits +Anti-bribery controls +Internal controls +When compliance program protects the company from liability (Morgan Stanley) +What your business’s anti-corruption program must and should include Risk Management +Company loss of credibility when talking with regulators/law enforcement Looking to the Future +Developing enforcement trends +Open issues lacking guidance +“Rogue” employees +Industry-wide investigations +Individual prosecutions +Money laundering and conspiracy trends in FCPA actions

Teaching Method

All participants receive a comprehensive binder containing copies of the presentation slides, handouts and other course materials


The instructor for this course will be drawn from one of our core faculty of subject matter experts. Further details will be published at the earliest opportunity.


Our seminars take place in 4 star professional conference facilities, generally in city-centre hotels like the Marriott, Sheraton or Hilton brands. Detailed Joining Instructions are sent to all registered delegates by email approximately one month before the event. The Joining Instructions will confirm exact venue details and nearby (or onsite) hotel recommendations with bedroom rates where available. Coffee and lunch will be provided.


No advance preparation is required for this course.