The Man From FCPA

Today, I begin a blogging series for Compliance Week as The Man From FCPA. Our goal is to provide you with up-to-date information on all things related to the Foreign Corrupt Practices Act and anti-corruption overall. I will cover FCPA issues that have a U.S.-centric focus, and also other anti-corruption issues and anti-corruption regimes going forward. I hope you will join me in the adventure. 

I recently saw the movie The Man From U.N.C.L.E. It was a rollicking good movie, stylish, set in great locations, with a fabulous score and all the Guy Ritchie touches you would expect. The action all took place in Europe and the locals and governmental cooperation among the U.S., U.K. and Soviet governments seemed to foretell one of the current international focuses: the fight against bribery and corruption. 

Last week PetroBras said in an SEC filing that it is not working with U.S. regulators to end the long list of corruption charges leveled against the company. That statement is merely the latest in a long list of unusual events in the compliance spectacle that PetroBras has become, but it does underline risks that even U.S. businesses should watch for as the PetroBras drama continues. Details inside.

In recent years money laundering has engulfed numerous international institutions, such as the Vatican, which has been roundly criticized by Italian prosecutors for both its failure to carry out appropriate due diligence over its customers and its inability to track suspicious transactions. Those criticisms have led to some dramatic changes, including the appointment of René Bruelhart to help the Church’s bank implement modern-day AML practices. See inside for what Bruelhart has planned.

One thing that critics of the Foreign Corrupt Practices Act constantly flail is the (alleged) lack of individual prosecutions under the law. Perhaps naming and shaming individuals responsible for actual FCPA violations would get word to the business community to take anti-corruption more seriously.

The fallout from the FIFA corruption scandal continues across the globe (literally), with FIFA audit committee members suspended and investigations expanded. As the next wave of soccer tournaments reaches the planning stages, however, we might be starting to see FIFA taking business practices seriously. Our Man From FCPA, Tom Fox, has more.

The scope of the Petrobras corruption scandal is literally worldwide. Now, reports the Financial Times,  Rolls Royce has become embroiled in the Brazilian national energy company’s “Operation Car Wash” snafu (dubbed so because the investigation literally started with a car wash), and is currently under investigation by the British Serious Fraud Office for bribery. Now is the time for European chief compliance officers doing business in Brazil to learn from the scandal and, hopefully, come out ahead, says CW FCPA blogger Tom Fox. More of his thoughts inside.

Sometimes it does not take active bribery or corruption by an individual to violate anti-corruption laws such as the Foreign Corrupt Practices Act. It is one of the few laws which makes illegal consciously avoiding the actual knowledge of the underlying crime.

A recent court ruling found that employees who reported suspected illegal conduct to their employers rather than to the SEC are entitled to the Dodd-Frank Act anti-retaliation protections. The decision, however, conflicts with a prior court decision, where the court refused to give weight to the SEC’s interpretation of the statute or its interplay with the Sarbanes-Oxley Act anti-retaliation provisions. CW FCPA blogger Tom Fox explores the cases and the confusion around determining anti-retaliation protection eligibility.

You might think in today’s corporate world “tone at the top” would be so well worn that you need not repeat it. Yet, tone at the top apparently did warrant repeating for former FIFA head Sepp Blatter. Earlier this week, Blatter announced he would fight the eight-year suspension placed upon him by FIFA’s ethics committee for his part in the scandal—a part, Blatter maintains, he did not play. During his press conference the outraged exec railed, “I am ashamed that the committee goes against the evidence presented. They have no right!” Um, don’t they?

Social media has certainly changed the way we communicate. Just look at federal securities fraudster Martin Shkreli, known for his extreme social media use, who has continued the practice (not surprisingly) post-arrest. According to the New York Times, Shkreli posts selfie videos “as if the possibility of going to prison were just a bump in the road.” These kinds of cases could bring a new worry for defense attorneys: a client’s use of social media to proclaim innocence and denounce the government—right up until convicted.

A recent Financial Times article says that non-U.S. corruption scandals have outpaced those which are U.S.-centric and, FT points out, the companies at the heart of these scandals fared pretty badly from their own transgressions. Inside, FCPA blogger Tom Fox examines the cases of Volkswagen, whose emissions fraud has caused the company’s share price to drop more than 30 percent; iconic Japanese entity Toshiba’s $1.3 billion accounting scandal; and Swedish company Industrivärden, whose perquisite scandal has decimated the board of directors. All of this and no mention of FIFA. What will 2016 bring? 

February 1 is a date that all U.S. and EU compliance practitioners need to circle. It’s the deadline for the U.S. Department of Commerce and the European Commission to reach a deal regarding the transfer of data from EU countries to the United States. As of now, the two still can’t agree on how U.S. spy agencies monitor Europeans’ digital profiles. And if no agreement is reached, the movement of data from Europe to the United States could cause the initiation of an investigation and make compliance with any internal investigation around the FCPA much more challenging. 

Recently, the U.S. Treasury Department said it would begin demanding to know the names of folks behind the shell companies, which ultra-wealthy foreigners use to hide behind multimillion-dollar real estate purchases. Efforts by the U.S. Treasury Department to police more closely large cash purchases of real estate as a method for money laundering are an important step toward combatting terrorism. But more work remains to be done.

Envelopes stuffed with cash and entire industries poised to take action against the first sign of whistleblowing are just two of the hallmarks of the endemic corruption that bedevils the entire Greek economy. What can be done when compliance isn’t just absent in a country, but actively avoided as a matter of tradition?

As FIFA continues to battle its landmark corruption scandal, it has elected a new President and passed a series of structural and process reforms to bring the organization into the 21st century and demonstrate to U.S. authorities that it really is going to change from its prior culture. But is it enough?

Financial services providers face unique corruption risks when seeking to win business in international markets. This includes a traditional form of back-scratching: the hiring of children or other close family members of prominent foreign officials. Only now the SEC has made it clear that such practices can and will invite FCPA scrutiny.

A 19-year prison sentence handed down in connection with Brazil’s widening “Car Wash” scandal is a wake-up call for any company that has done business with Odebrecht SA, the largest construction company in Brazil and, indeed, South America. The scandal, which began with energy firm Petrobras, should enforce that it’s time to begin reviewing the whole of your contractual relationships to see if there are any FCPA, U.K. Bribery Act, or other anti-corruption issues you need to address.

It appears the Fédération Internationale de Football Association is trying to shed its corrupt image in favor of playing the victim. The international governing body of football has asked the Justice Department for its share of monies it obtains through forfeiture and penalties from individuals prosecuted around the FIFA corruption scandal. But has the entity put any work into cleaning up its own house before seeking help? FCPA blogger Tom Fox explores.

While Petrobras currently holds the title as the most corrupt national energy company in South America, Petroleos de Venezuela SA (PDVSA) is a strong contender as well, thanks to ongoing U.S. investigations into possible FCPA violations involving U.S. companies, Swiss banks, and corrupt PDVSA officials.

The ongoing FIFA corruption scandal takes on new life as some of the top names in German soccer, as well as sports apparel manufacturer Adidas, appear to be implicated in the 2006 World Cup bid. CW’s Tom Fox reports on this latest ethics investigation.

As billionaire construction magnate Marcelo Odebrecht prepares to turn state’s evidence in the corruption investigation that covers Petrobras, Odebrecht SA, and the Brazilian presidency itself, it seems that we might finally get some insight on just how pervasive Brazil’s  so-called “cartel of corruption” really was. Is anybody ready to handle the truth?

Trouble seems to follow Japan-based Olympus. The company, which admitted in 2011 to a $1.7 billion accounting fraud, is once again facing corruption allegations. Olympus hired China-based Anyuanto to help turn it around, despite the fact that Anyuan’s chairman had previously been convicted of fraud; Olympus’ contract wasn’t with Anyuan directly; and Olympus made $180,000 in payments upfront for “unspecified services.” So far an internal probe has turned up nothing interesting. We’ll have to wait to see what regulators uncover.

The Serious Fraud Office investigation into Airbus emphasizes the importance of compliance program best practices for borrowers in obtaining funding and loan guarantees, especially in light of the latest trend: government oversight. Tom Fox reports.