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Archive for the ‘Foreign Corrupt Practices Act’ Category

FCPA Guidance Issued By DOJ and SEC

Sunday, December 15th, 2013

DOJ and SEC Jointly Release Resource Guide to the U.S. Foreign Corrupt Practices Act

FCPA Guidance DOJ On November 14, 2012, two Federal agencies, who have jurisdiction over the U.S. Foreign Corrupt Practices Act, jointly released a very useful and comprehensive Resource Guide to this very detailed, complex and often misunderstood law.  The nearly 120-page document represents the joint efforts of the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission.

A copy of the Resource Guide is available for download, free of charge, at and

You may be asking yourself how a law entitled the Foreign Corrupt Practices Act could potentially apply to your business, even if you have no active or regular international business operations.  The answer is that the law potentially reaches all issuers of securities in the United States, “domestic concerns,” and even foreign companies who have securities listed in a United States market.

The FCPA prohibits payments that are intended to induce or influence a foreign official to use their position to assist in obtaining, retaining, or directing business.  Very few of us have had contact with a foreign official as we would commonly understand.  The term “foreign official” can encompass a broader range of individuals than you may expect, particularly in countries where many aspects of business are governmental or quasi-governmental.

It is the broad manner in which each of the relevant terms and requirements are interpreted that makes the FCPA so dangerous.  It is possible to step into a violation without even knowing it.  For example, the government considers individuals who you may never expect to be “foreign officials.”  For example, in certain countries, hospitals are publicly run, so your engagement with a hospital administrator, purchasing agent, or other hospital representative may actually be an engagement with a foreign official.

This is only one of the many examples of how the FCPA may apply to your business even if you do not consider yourself to be an international company or having an engagement with foreign officials.

We recommend that all of our clients consider the potential implications of the FCPA on their businesses.  Ruder Ware continually assist clients with FCPA compliance issues.  We have assembled a multidisciplinary team of attorneys, include one who is Certified in Corporate Compliance and Ethics and are available to assist you with FCPA or other regulatory compliance issues.

Anti-Bribery and Corruption Risk Assessment – Assessing Compliance Risks

Tuesday, June 4th, 2013

Anti-Bribery and Corruption Risk Assessment

anti-bribery corruption risk assessmentCompliance risk assessment is continuing a trend toward priority for companies that have global operations.  The trend toward systematic compliance programs spans across all industries.  The priority, scope, frequency, and level of sophistication of compliance activities are growing in response to the expansion of governmental focus on bribery, fraud, and corruption.

The United States has had laws on the books governing fraud, bribery, and other corrupt practices for many years but is now taking a much more aggressive approach toward enforcement.  Other countries are also expanding their enforcement.  Many, including China, the United Kingdom, and Russia, have adopted new laws addressing bribery and corruption.  The laws of each country must be considered when operating globally.  All have somewhat different requirements, all which must be considered when structuring and operating global compliance programs.

Period risk assessment of corruption and bribery law compliance has now become industry standard.  Companies that have substantial operations must assess corruption and bribery risk on an ongoing basis.  Assessments should be performed in a systematic way based upon prioritization of risks.  The ongoing assessment of risk should also include the adoption of corrective action to address areas that are determined to present significant risk, where existing process or policies are not adequate, or where violations may have already occurred.

Risk assessment also serves a didactic element.  The process itself reinforces attention on the compliance process, the company’s commitment to compliance and the issues involved with the specific area of risk that is being assessed.

Compliance is best viewed as a process rather than a set of policies.  The process is circular and never-ending.  One state is built upon the previous.  The end result resumes the process.  Conceptually at least, the process begins with identification of risk.  Various risk areas can then be assessed, scored, and prioritized based upon the affect on the organization.

Prioritized risk can then be assessed through appropriate means which may include controls, monitoring or auditing.  Depending on the risk involved, external auditing or further assessment may be appropriate.  Deficiencies in controls can be identified and a “gap analysis” can be performed.  This leads to an appropriate corrective action being taken to address any identified gaps.  Corrective actions may include the adoption of policies and procedures, disciplinary actions, self reporting, subject area training, and other appropriate activities given all of the facts and circumstances.

compliance attorney ccep

The compliance program establishes the process in which assessment takes place.  The program establishes the ground rules for the assessment and remediation of risk.  The program helps assure that the process sis uniform and systematic.

Some of the elements that should be included in assessing risks under the anti-bribery and corruption laws of various countries will be covered in subsequent posts.
John Fisher is a certified in corporate compliance and ethics (CCEP) and is an attorney with the Ruder Ware law firm.

Compliance Issues Using Third Party Contractors

Monday, April 29th, 2013

Compliance Issues When Using Third Parties

Global Compliance 

Global Third Party ComplianceThird party actions taken on your behalf are to a significant extent as much as your responsibility as actions taken by your employees.  As such, it is necessary for all parties involved at every level of the transportation and relocation industry to establish effective processes to govern and direct appropriate activities that are conducted on their behalf.

Expectation is that you know the identity of third parties, that you have a process in place to screen third parties, and that you retain control over the activities that they conduct on your behalf.

Your concerns should be raised and special care taken in cases where you do not know who you are doing business with, you use geographically dispersed contractors, you work in different cultures (particularly high risk cultures), and

Know Who You Do Business With

Maintain a database of third parties who you do business with.  The database should include information on the applicable contractor and the process that was followed to conduct due diligence.

Risk Assessment of Third Parties

You should have a system in place to identify the third parties who present the most risk.  Risk factors may include geographic high risk areas (Transparency International Competition index).

Incorporate Due Diligence

Adopt a process for selection of third party contractors based on risk.  Your system should categorize the level of risk that is presented by each subcontractor.

Written Contracts

Written contracts that set forth expectations and standards for third parties must be put in place.

Responsible Individual

One individual with your organization should be designated as being responsible for managing the third party

Be Guided by Red Flags

You should create a list of “red flags” that will alert you to existence of facts that suggest that there may be a higher degree of risk with a specific subcontractor.

Foreign Corrupt Practices Act Summarized

Thursday, April 18th, 2013

FCPA Summary ComplianceThe  as amended by the International Anti-bribery and Fair Competition Act of 1998 (collectively, “FCPA”) was enacted to prohibit bribes and other illegal payments to officials of a foreign government, public international organization or foreign political party by American companies and by foreign persons present in the United States to obtain or retain business or to secure any improper advantage. The FCPA is part of the Securities and Exchange Act of 1934 and contains provisions concerning record keeping and accounting as well as penalties for violations.

The accounting provisions require companies to keep detailed books, records and accounts accurately reflecting corporate payments and transactions. They also require such companies to institute and maintain internal accounting control systems that would assure management’s control over the company’s assets. The prohibited payments (antibribery) provisions are designed to prohibit U.S. citizens and companies and foreign persons present in the United States from using the mails or any instrumentality of interstate commerce corruptly in furtherance of an offer, payment or promise to pay or give anything of value to officials of a foreign government, public international  organization or foreign political party, or (with knowledge or belief that it will go to someone in any such class of recipients) to any person for purposes of influencing official acts (including failures to act) in order to assist in obtaining or retaining business or to  secure any improper advantage.

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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