Key insights from the 13th Annual Forum on the FCPA

February 12, 2019

Monitorships

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

Cross-Border Investigations

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: