FRA Directors Umair Nadeem and Samantha Hsu recently attended the 13th Annual Forum on the FCPA. The two-day forum highlighted updates on the policy, as well as enforcement priorities. Below, Umair and Samantha share their key insights.
Since 2013, 1 in 3 corporate FCPA resolutions have involved monitors. There have been 15 FCPA monitorships announced that have not yet concluded, with the average monitorship lasting 30 months.
During a session that provided an insider view into monitorship considerations, Partners from King & Spalding LLP, Paul Hastings LLP, and Bilfinger suggested a few key points to focus on when considering monitorship agreements for both companies and forensic firms:
- Privilege v. Confidentiality
- Fee structure/discounts/budgets/billing/timekeeper approval
- Supporting the Monitorship (Language(s), local law advice, access to third parties/ex-employees)
- Coordination among monitors
- Conceptually align on key points
- Reporting obligation
As anti-corruption policies and enforcement matures, the US DOJ continues to implement new policies and guidelines. The “No Piling-On” policy was added in 2018 and has led to the DOJ making concerted efforts to seek apportion penalties only between relevant jurisdictions. Efforts have also been made to better coordinate with foreign entities. The US DOJ has coordinated resolutions with foreign entities in nine cases since 2016, doubling the total of previous year’s resolutions combined
Updates to Mexico’s National Anti-Corruption System (SNA) led to an enactment of four new laws, as well as amendments to existing ones. Also new for SNA is the Citizen’s Participation Committee. In efforts to maintain transparency, one of the five non-government persons selected for the committee will chair the Coordinating Committee, the group responsible for SNA deployment and coordination at Federal and State levels. Companies operating in and in partnership with Mexico operators will face a few challenges when adapting to these new laws, including adjusting to a new regime, new legal concepts without precedent, and an unpredictable political environment that could influence enforcement.
In the LATAM space, there were 4 total LATAM FCPA enforcement actions between 2016 and 2018. New anti-bribery, anti-corruption, and anti-money laundering legislation has been introduced in Peru, Argentina, Uruguay, and Costa Rica.
Cases to Watch
With anti-corruption policies and enforcement increasing across the globe, multi-jurisdictional cases will continue to make headlines this year and beyond. Key cases to watch include:
• Unaoil-related cases between the US and UK
• Goldman Sachs/1MDB cases between the US, Malaysia, Singapore and Switzerland
• Airbus cases between US, UK and France
• Group Aval between US and Colombia; and
• Glencore between US and UK
For more information on the FCPA Forum in Houston and future FCPA events, visit their website.