Excerpt - A Resource Guide To The U.S. Foreign Corrupt Practices Act (?FCPA Resource Guide')

AuthorStuart H Deming; Truman K Butler; Vivian Robinson
Appendix A
Excerpt - A Resource Guide To
The U.S. Foreign Corrupt Practices
Act (‘FCPA Resource Guide’)*
* * *
Corporate Compliance Program
In a global marketplace, an effective compliance program is a critical com-
ponent of a company’s internal controls and is essential to detecting and
preventing FCPA violations.
Effective compliance programs are tailored
to the company’s specic business and to the risks associated with that busi-
ness. They are dynamic and evolve as the business and the markets change.
An effective compliance program promotes “an organizational culture
that encourages ethical conduct and a commitment to compliance with the
law.301 Such a program protects a company’s reputation, ensures investor
value and condence, reduces uncertainty in business transactions, and
300. See U.S. S G at § 8B2.1(a)(2).
301. U.S. S G § 8B2.1(b).
* U.S. D’ O J A S.  E. C’, A Resource Guide to the U.S. For-
eign Corrupt Practices Act (Nov. 2012), available at http://www.justice.gov/criminal/fraud/
FCPAUKBriberyAct_02-Appendix-BM.indd 83 7/18/19 10:17 AM
Appendix A84
secures a company’s assets.
A well-constructed, thoughtfully implemented,
and consistently enforced compliance and ethics program helps prevent,
detect, remediate, and report misconduct, including FCPA violations.
In addition to considering whether a company has self-reported, cooper-
ated, and taken appropriate remedial actions, DOJ and SEC also consider
the adequacy of a company’s compliance program when deciding what, if
any, action to take. The program may inuence whether or not charges
should be resolved through a deferred prosecution agreement (DPA) or
non-prosecution agreement (NPA), as well as the appropriate length of
any DPA or NPA, or the term of corporate probation. It will often affect
the penalty amount and the need for a monitor or self-reporting.303 As dis-
cussed above, SEC’s Seaboard Report focuses, among other things, on a
company’s self-policing prior to the discovery of the misconduct, includ-
ing whether it had established effective compliance procedures.304 Likewise,
302. See generally D T,  , C : H  B  M-
  E C  E P, S  C. C 
E (2008) 3-9 [hereinafter C ] (listing reasons to implement compliance
program, including protecting company’s reputation, creating trust between management and
employees, preventing false statements to customers, creating efciencies and streamlining pro
cesses, detecting employee and contractor fraud and abuse, ensuring high-quality products and
services, and providing “early warning” system of inappropriate actions); T I’,
B P  C B: S  M E (SME)
(E 5 (2008) (citing benets of anti-bribery program like protecting reputation, creating
record of integrity enhances opportunities to acquire government business, protecting com-
pany assets otherwise squandered on bribes); M P, H A-C
C: T OECD G P G 45-46 (2011) [hereinafter H-
 A-C C] (citing need for compliance program to prevent and
detect in-house risks, such as workplace security or conicts of interest, and external risks, like
anti-trust violations, embargo circumvention, environmental hazards, and money laundering).
303. Debarment authorities, such as the Department of Defense or the General Services
Administration, may also consider a company’s compliance program when deciding whether
to debar or suspend a contractor. Specically, the relevant regulations provide that the debar-
ment authority should consider “[w]hether the contractor had effective standards of conduct
and internal control systems in place at the time of the activity which constitutes cause for
debarment or had adopted such procedures prior to any Government investigation of the
activity cited as a cause for debarment,” and “[w]hether the contractor has instituted or agreed
to institute new or revised review and control procedures and ethics training programs.” 48
C.F.R. § 9.406-1(a).
304. [U.S. S.  E C., R  I P  S
(A)   S E A    C S  
R   R  C  A E D-
, SEC Rel. Nos. 34-44969 and AAER-1470 (Oct. 23, 2001), available at http://www.
FCPAUKBriberyAct_02-Appendix-BM.indd 84 7/18/19 10:17 AM

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