For the Defense - Vol. 3, Issue 2 - 2018 - 37
R
ecently celebrating the 40th anniversary
of its enactment, the U.S. Foreign Corrupt
Practices Act (FCPA) remains the most
globally recognized anti-bribery and anticorruption (ABAC) legislation.1 Written to
protect the basic principle of a free market
system, the FCPA strives to promote "that
the sale of products...take place on the basis
of price, quality, and service", as "corporate
bribery is fundamentally destructive of this basic
tenet."2 While the initial aim of the FCPA has
not shifted over the
past four decades,
US organizations
rapid globalization
that report having
has added a layer
been asked to pay
of complexity
a bribe (either in
to the manner
country or globally)
in which bribery
has quadrupled over
and corruption is
perpetrated, as well
the past two years,
as the methods by
from 7% in 2016 to
which businesses
31% in 2018.
prevent, uncover,
and remedy these
issues. The Department of Justice (DoJ) and
the Securities and Exchange Commission (SEC),
responsible for enforcement of the FCPA, have
regularly provided guidance, commentary,
and precedence as to what is considered an
effective compliance program. Compliance
Officers are therefore tasked with maintaining
a global compliance program and meeting
the expectations of the DoJ and SEC, all while
constrained by characteristically tight budgets.
The importance of identifying noncompliance and doing so in a timely manner
has been magnified by Deputy Attorney
General Rod Rosenstein's November 29, 2017
announcement of the DoJ's FCPA Corporate
Enforcement Policy, an addition to the
U.S. Attorneys' Manual.3 The Corporate
Enforcement Policy includes a presumption
that a company will receive a declination,
absent aggravating circumstances, when it "has
voluntarily self-disclosed," "fully cooperated,"
and "timely and appropriately remediated"
misconduct in a FCPA matter.4 Codifying
the DoJ's FCPA Pilot Program, the Corporate
Enforcement Policy provides incentives for
voluntary self-disclosure, and also formalizes
what is expected of companies during an
investigation and as part of their remedial
efforts. The DoJ has indicated that simply
identifying and disclosing the misconduct
is insufficient, as companies must also
demonstrate a "thorough analysis of causes
of underlying conduct" as part of the timely
and appropriate remediation.5 Within the
context of a complex, global investigation, a
traditional compliance program absent data
analytics and technology enabled solutions
would have difficulty conducting a thorough
root-cause analysis in a timely manner. Such
an investigation requires significant "onthe-ground" resources and time investment,
which companies must be conscious of
when considering their options and selfdisclosure. Compliance programs that have
effectively integrated data analytics can
instead quickly identify trends or patterns,
multifarious relationships, and additional
red flag indicators, by using a fraction of
the required resources. Said differently, data
analytics enables companies to accomplish
more during a time sensitive scenario with their
existing compliance resources. The ability to
appropriately remediate is widely dependent
on having a thorough understanding of the fact
patterns around the misconduct and potential
pervasiveness across the organization, both of
which are done more efficiently when utilizing
data analytics.
Published by the DoJ and SEC, A Resource
Guide to the U.S. Foreign Corrupt Practices
Act (Guide) provides guidance as to how the
agencies interpret and enforce the FCPA.6 In
addition to providing an overview of the
legislation, the Guide notably highlights the
necessary elements or "Hallmarks" of an
effective compliance program.7 While the DoJ
and SEC acknowledge that individual companies
have their own distinct risk profile, rendering
"one-size-fits-all" programs ineffective, these
Hallmarks allow companies to benchmark
their program and also design improvements
to address those elements that help prevent
Vol. 3, Issue 2
l
For The Defense
37
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
For the Defense - Vol. 3, Issue 2 - 2018 - 19
For the Defense - Vol. 3, Issue 2 - 2018 - 20
For the Defense - Vol. 3, Issue 2 - 2018 - 21
For the Defense - Vol. 3, Issue 2 - 2018 - 22
For the Defense - Vol. 3, Issue 2 - 2018 - 23
For the Defense - Vol. 3, Issue 2 - 2018 - 24
For the Defense - Vol. 3, Issue 2 - 2018 - 25
For the Defense - Vol. 3, Issue 2 - 2018 - 26
For the Defense - Vol. 3, Issue 2 - 2018 - 27
For the Defense - Vol. 3, Issue 2 - 2018 - 28
For the Defense - Vol. 3, Issue 2 - 2018 - 29
For the Defense - Vol. 3, Issue 2 - 2018 - 30
For the Defense - Vol. 3, Issue 2 - 2018 - 31
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For the Defense - Vol. 3, Issue 2 - 2018 - 33
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For the Defense - Vol. 3, Issue 2 - 2018 - 35
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For the Defense - Vol. 3, Issue 2 - 2018 - 37
For the Defense - Vol. 3, Issue 2 - 2018 - 38
For the Defense - Vol. 3, Issue 2 - 2018 - 39
For the Defense - Vol. 3, Issue 2 - 2018 - 40
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For the Defense - Vol. 3, Issue 2 - 2018 - 42
For the Defense - Vol. 3, Issue 2 - 2018 - 43
For the Defense - Vol. 3, Issue 2 - 2018 - 44
For the Defense - Vol. 3, Issue 2 - 2018 - 45
For the Defense - Vol. 3, Issue 2 - 2018 - 46
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