If you are visually impaired or blind, you can visit the PDF version by Pressing CONTROL + ALT + 4
You need a JavaScript-enabled browser to view this Publication
Please follow these steps to view the Publication:
Enable JavaScript in your browser
Refresh this page
Best regards
Zmags
FCPA & Anti-Bribery
Fall 2023 Alert
Hughes Hubbard & Reed LLP
A New York Limited Liability Partnership • One Battery Park Plaza
New York, New York 10004-1482 • +1 (212) 837-6000
Attorney advertising. Readers are advised that prior results do not
guarantee a similar outcome. No aspect of this advertisement has
been approved by the Supreme Court of New Jersey.
© 2023 Hughes Hubbard & Reed LLP
Anti-Corruption and Internal
Investigations Practice Group
PARTNERS
Kevin T. Abikoff
Derek J. T. Adler
Benjamin Britz
Kenyen Brown
Kevin T. Carroll
Charles W. Cohen
Michael A. DeBernardis
Jan Dunin-Wasowicz
Diego Durán de la Vega
Anne Hukkelaas Gaustad
Terence Healy
Yi Chin Ho
Michael H. Huneke
Christine (Yi) Kang
Marie-Agnès Nicolas
Neil J. Oxford
Laura N. Perkins
Salim Jorge Saud Neto*
FCPA & Anti-Bribery Fall 2023 Alert Hughes Hu
Anti-Corruption and Internal Investigations Pract
Contributions Executive Editors Ke
Introduction
Table of Contents CHAPTER 1 • HIGHLIGHTS, TREN
Table of Contents continued
Table of Contents continued Risks Assoc
Table of Contents continued Anti-Corruption En
1 Chapter Highlights, Tre
Recent Highlights The past year has seen several
a presumption of a declination of prosecution if
Three-time offender ABB gets DPA, avoids monitor,
DOJ Clawback Pilot Program puts compliance compen
French PNF issues new guidelines on CJIPs The ab
payment of cryptocurrency worth $40 million
Trends & Lessons TRENDS “Waiting for the Next
if a monitor is appropriate. The dearth of monito
LESSONS Conduct thorough M&A due diligence and
President Gordon Coburn and Chief Legal Officer S
• Examine Carefully the Qualifications of Agent
and that the recipients are legitimate charitable
it is able to claw back from employees who engage
Ensure full compliance with conditions of resolut
2 Chapter FCPA
FCPA Elements and Penalties The FCPA has two fun
problem—variously described in the pertinent auth
or performance of a contract with a foreign gover
Willful violations of the Accounting Provisions c
Policy Updates Over the course of 2023, the DOJ
timely and appropriately remediate may now receiv
companies will actively preserve, collect, and pr
imposing penalties against employees involved in
acquired entity and self-reports that misconduct
the Polite Memo attempts to provide additional tr
INCREASING FOCUS ON NATIONAL SECURITY-RELATED PRO
Opinion Procedure Releases RELEASE NO. 23-01 O
FCPA Settlements and Enforcement Actions:
The SEC also noted that tourism activities were o
Conduct According to the DOJ and SEC, between a
parties, payment of higher commissions than contr
documentation prepared often did not include the
Superintendence of Industry and Commerce, the cou
Corsa Coal On March 8, 2023, the DOJ announced th
Ericsson On March 2, 2023, the DOJ announced that
Similarly, regarding the China scheme, Ericsson a
Conduct In 2014, Stars Group acquired PokerStar
Conduct During the relevant period, Frank’s was
Gartner, Inc. On May 26, 2023, Gartner, Inc. (“Ga
Resolution The SEC agreed to resolve these alle
Resolution Philips is a repeat offender, having
The SEC pointed to a number of red flags that aros
2022 ABB On December 2, 2022, the DOJ announced t
Once work under the contract was underway, ABB en
[its] ever deepening partnerships in the global fi
conspired to pay over $100 million and other thin
Conduct in the DRC In the DRC, Glencore admitted
Glencore also defrauded other market participants
The DOJ did not credit the $39,598,367 penalty le
Restitution Claims On February 27, 2023, Distri
Angeles 280 SCST Bunker Fuel price. On August 10,
Subsequently, in 2012, the Brazilian legislature
Finally, GOL paid bribes through a consulting com
internal investigation, translating key documents
According to the SEC Order, in Algeria, Honeywell
bribes, and the DOJ agreed to credit up to 100 pe
KT Corporation On February 17, 2022, the SEC anno
accounts of members of the Korean National Assemb
Resolution KT agreed to pay a disgorgement of $
such as paying for foreign officials to attend te
services on the project. The Oracle Turkey sales
According to the SEC, “one of the sales employees
continue to fully cooperate in any ongoing U.S. i
The conduct at issue in the DOJ and SEC resolutio
under contracts, or to avoid fines. The payments,
With respect to the SEC’s cease-and-desist order,
Agreement (“NPA”) with the DOJ for alleged bribes
Although the various transactions by which the br
FCPA Settlements and Enforcement Actions:
The Ecuador Scheme In connection with the Ecuado
March 16, 2022, the DOJ filed a single-count infor
and more than 100 of its affiliates—including Ala
provisions of the FCPA. The information alleges t
According to the indictment, Vielma-Mora and his
The DOJ alleges that, in connection with seeking
U.S. and took no actions that were connected to t
to “classified information.” However, Judge Hoyt c
$550 million in profits was paid in bribes to the
In exchange for these bribes, Berkowitz and other
Eastern District of New York entered final judgmen
SEC, Berko took a number of deliberate measures t
timely voluntary disclosure, the DOJ was able to
From 2016 through 2020, Hobson and Cushmore cause
Beginning in 2011 and continuing until well after
Pursuant to the sham agreements and invoices, Vit
intermediary companies. The bribes were made thro
According to the court documents, between 2009 an
Cary Yan and Gina Zhou On December 1, 2022, Cary
3 Chapter France: Anti-Co
France Anti-Bribery Update In 2016, France insti
CRIMINALIZATION OF INFLUENCE PEDDLING French la
The Convention Judiciaire d’Intérêt Public—
ADVANTAGES OF CJIPS No admission of guilt. A CJ
information disclosed by the legal entity where t
When negotiating the CJIP, the 2023 PNF Guideline
a reasonable time after the company becomes aware
The 2023 PNF Guidelines and the 2020 Ministry of
direct and indirect profits gained from the corrup
A Company’s Affirmative Obligation to Implem
AFA’S RECOMMENDATIONS FOR COMPLIANCE PROGRAMS I
• Risk mapping: According to the AFA, the risk
particularly be attended by board members, direct
• Control notice. The AFA sends a control noti
(sic). Indeed, it appears that phase 2 would be l
The AFA has a number of choices in concluding the
• 178 were designed to ensure compliance with
• Code of conduct: The AFA specified that the d
Oversight of Compliance With Law 68, 678
The French Court-Imposed Monitorship Under Sapin
Successor Liability for Corruption Offenses
under relevant anti-corruption, economic sanction
Recent Enforcement Actions TECHNIP On June 22,
disclosure of facts starting from October 2018, t
The PNF determined that the profits gained by Bouy
victims by the company), they also noted that the
Following information received from the British N
DORIS GROUP On June 9, 2022, the Doris Group SA
4 Chapter Anti-Corruption
Anti-Corruption Enforcement Update: Brazil RELEV
Federation to delegate the negotiation of Lenienc
size and structural complexity, as well as the us
chief prosecutor of Operation Car Wash, Deltan Da
ENFORCEMENT HIGHLIGHTS Recent Settlements Anti-
Federal Agencies earlier in 2022, with (i) Steric
Improbity Law and the Clean Companies Act. Additi
Mar Holding Participações S.A. e Operadora e Agên
While this was the first Leniency Agreement entere
In addition to States, Brazilian Municipalities h
During 2023, the ANPD has also released its Regul
Anti-Corruption Enforcement Update: China OVERVI
the provisions punishing bribery crimes committed
corruption, traffic law enforcement, exam cheatin
Proposed Revision II: Clarifying That Commercial
practice such as providing improper benefits to he
More than 200 individuals have been subject to in
UPDATES ON CROSS-BORDER DATA TRANSFER FRAMEWORK
Contract Terms: In addition to the elements discu
On May 21, 2023, CAC announced that “Micron’s pro
Anti-Corruption Enforcement Update:
RELEVANT GUIDANCE The Serious Fraud Office (“SF
Relevance of Compliance Programs The SFO examin
company may be able to improve its compliance eff
5. Communication (and training): companies must
DPA Terms According to the guidance, a DPA must
5 Chapter Anti-Corrupti
Multilateral Development Bank Sanctions Multilat
Recent Sanctions for Corrupt Practices A signific
the contracts. Getinsa Vietnam was debarred with
approvals, and misrepresented the payments as pro
AIM Consultants. On February 23, 2022, the World
Lessons from Sanctions Decisions Regarding
No. 78 ¶ 56 (2015)). More broadly, corrupt intent
For more information, please contact: KEVIN T. A