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How to prevent FCPA Liability
Compliance programs
Employees should receive regular training on anti-bribery laws and certify that they understand and will follow corporate policy. Employees should also be informed on the proper procedure and contact channels for guidance and or to report possible violations.
Third party relationships (joint venture partners and agents) should be required to verify their compliance with anti-bribery laws.
Companies should develop comprehensive due diligence procedures to investigate joint venture partners, agents and targets of prospective mergers and acquisitions. Finally, companies should monitor current records to maintain that individuals do not hold a political office or have close relationships with government officials or organizations
Relationship Risk Assessment
All corporations who are United States based, or that conduct business within the borders of the United States, should perform a risk assessment on all business partners, 3rd party agents, and potential merger partners to understand whether any company or individual is affiliated with a foreign government. Understanding these relationships can only be performed by a screening of each entity and person against a comprehensive database of politicians, their associates, and government owned entities. This relationship screening should be performed on all new relationship and periodically on all current relationships to ensure that all funds transferred to these individuals and entities are not conflicting with the intent of the Foreign Corrupt Practices Act.
Components of a database of politicians and contacts (PEP Database):
- Must have a truly global scope, there are over 800,000 known PEPs globally
- Data must contain unique identifiers (date of birth, photograph, passport number and national id number) to differentiate among similar names
- Offer the ability to recognize variations in spelling and foreign languages. For example: there are over 16 spelling variations for the name Abraham.
Attorney general opinions
Issuers and domestic concerns can contact the Attorney General for guidance concerning whether certain conduct violates the FCPA’s anti-bribery provisions. The request must specify exact facts related to the actual conduct, the Department of Justice will not provide opinions on hypothetical situations.
After a potential violation is discovered it is recommended to conduct an internal investigation, preferably by outside counsel in the country where the violation took place. It is important to implement prompt remedial and disciplinary action as deemed necessary.
In the News“The Securities and Exchange Commission today announced settlements with KBR, Inc. and Halliburton Co. to resolve SEC charges that KBR subsidiary Kellogg Brown & Root LLC bribed Nigerian government officials over a 10-year period, in violation of the Foreign Corrupt Practices Act (FCPA), in order to obtain construction contracts. The SEC also charged that KBR and Halliburton, KBR's former parent company, engaged in books and records violations and internal controls violations related to the bribery. |
