Foreign Corrupt Practices Act

International trade attorney Lindsay Meyer, co-chair of Venable's international trade group, has retired, according to a firm notice at the Court of International Trade. Meyer received her J.D. degree from the George Washington University Law School in 1987 and worked in international trade for over 30 years, covering trade remedies, the Foreign Corrupt Practices Act, and customs and homeland security matters. She also is a licensed customs broker.

The inability of CBP to stop all goods made with Uyghur forced labor was one of the focuses of a trade hearing hosted on Staten Island by the House Ways and Means Committee, and when committee Chairman Jason Smith, R-Mo., asked a witness what more could be done to crack down, Uyghur activist Nury Turkel said the Uyghur Forced Labor Prevention Act should be expanded to cover all of China.

Sen. Marco Rubio, R-Fla., announced he is introducing a bill that would make U.S. companies liable for statements "that excuse the genocide in Xinjiang" or other statements that advance Chinese propaganda efforts, and would make it illegal to invest in core Chinese Communist Party activities. He says these actions would be subject to the Foreign Corrupt Practices Act, unless companies could explain that their actions were not made to gain or retain market access. Traditionally, the FCPA has been used to prosecute the offering of bribes by U.S. persons or firms in foreign countries.

Thompson Hine hired Francesca Guerrero, previously with Winston & Strawn, as a partner in the firm's International Trade practice, it said in a news release. “Guerrero brings to the firm extensive experience advising companies on compliance with export controls, sanctions, import regulations, and the U.S. Foreign Corrupt Practices Act,” the firm said.

Foreigners without close ties to U.S. companies cannot be held in violation of the Foreign Corrupt Practices Act for acts that took place outside the U.S., the U.S. Court of Appeals for the 2nd Circuit said in an Aug. 24 decision. The government had alleged Lawrence Hoskins, a U.K. national and senior vice president of France-based Alstom Resources Management, was guilty of FCPA violations by way of conspiring with employees of a U.S.-based subsidiary to bribe Indonesian officials in an effort to secure a power generation contract. But conspiring with U.S. officials was not good enough, the appeals court ruled, affirming a district court decision. Unlike U.S. nationals, who are explicitly liable for the FCPA for conduct abroad, “the FCPA clearly dictates that foreign nationals may only violate the statute outside the United States if they are agents, employees, officers, directors, or shareholders of an American issuer or domestic concern,” the court said. “To hold Hoskins liable, the government must demonstrate that he falls within one of those categories or acted illegally on American soil.” The government can still pursue FCPA charges if it proves Hoskins was acting as an agent of a U.S. company, the appeals court said. Hoskins also faces money laundering charges filed in 2013 with the FCPA charges, according to a post on The FCPA Blog.

Republicans on the House Oversight and Government Reform Committee are requesting that the Office of Foreign Assets Control contact the committee before Dec. 24 to schedule a briefing on certain aspects of an agreement for Boeing to sell 80 jetliners to Iranian state-owned Iran Air for approximately $16.6 billion, according to a Dec. 15 letter to Treasury Secretary Jack Lew (here). Specifically, committee Chairman Jason Chaffetz, R-Utah, and House Oversight and Government Reform National Security Subcommittee Ron DeSantis, R-Fla., requested that Treasury share information related to the OFAC licensing timeline, OFAC’s interagency coordination preceding approval, any sanctions-related contingency plans, any measures preventing illicit transfers of U.S. technology, and Treasury’s communication with the incoming Trump administration regarding progress on the Boeing deal. Once completed, the sale would be the largest business deal between the U.S. and Iran since the signing of the Joint Comprehensive Plan of Action, the letter says.

Siemens agreed to pay a $175,000 fine for not disclosing two corporate felony convictions on a variety of Federal Communications Commission wireless license applications. The convictions stem from Siemens in 2008 pleading guilty to violating the accounting provisions of the Foreign Corrupt Practices Act through bribery of foreign government officials and in 2007 pleading guilty to a federal charge of obstruction of justice in a civil matter, the FCC Enforcement Bureau said in its Sept. 22 order (here). The failure to disclose "is particularly troubling because the underlying acts included misdeeds involving foreign telecommunications regulators," the bureau said, saying the consent decree includes that the two Siemens subsidiaries involved -- Siemens Corp. and Siemens Medical Solutions -- corrected the wireless application submissions on their own initiative and were fully cooperative with a bureau investigation afterward. Under the consent decree, the two also will develop and implement a compliance plan aimed at ensuring accurate future filing of wireless license applications, including a compliance manual and compliance training. Siemens didn't comment.

The Justice Department Fraud Section’s Foreign Corrupt Practices Act (FCPA) Unit on April 5 started a pilot program for companies to self-disclose corporate crimes prohibited by the FCPA, such as bribery of foreign officials, DOJ said (here). Under the program, DOJ is giving companies mitigation credit if they meet several mandates, including “proactive” disclosure of all relevant facts of individuals involved in the wrongdoing before “an imminent threat” of outside disclosure or government investigation presents itself, and within “reasonably prompt time after” becoming aware of an offense, DOJ said. Mitigation could include a different resulting disposition type, a fine reduction, or determination of a need for a monitor. DOJ acknowledged it’d be tough to determine company remediation measures taken, but said the Fraud Section’s compliance counsel is “assisting” the department in “refining our benchmarks” for determining to what degree companies have implemented an effective compliance and ethics program, compliance culture, resources dedicated to compliance, quality and experience of compliance personnel, and risk assessments, among other things.

An Appeals Court ruling that the Foreign Corrupt Practices Act applies to state-owned companies will stand, after the Supreme Court on Oct. 6 declined to hear the case. The U.S. Court of Appeals for the 11th Circuit had found in U.S. v. Esquenazi and Rodriguez that payments by the co-owners of Terra Telecommunications, Joel Esquenazi and Carlos Rodriguez, to the Haitian government-owned Telecommunications D’Haiti (Teleco) qualified as a bribe paid to a foreign official, and upheld their 15 and seven year prison sentences, respectively (see 14052002). The Appeals Court explained in its May 2014 decision that an employee of the Haitian telecommunications company qualified under FCPA as a “foreign official” because Teleco was “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” Teleco isn’t a Haitian government agency, but was at the time almost completely owned by the central bank of Haiti. The Supreme Court offered no reason for denying certiorari.

The U.S. Court of Appeals for the 11th Circuit recently issued an opinion that for the first time delineated the application of the Foreign Corrupt Practices Act to state-owned companies. The Appeals Court on May 16 found that bribing officials at foreign companies is illegal and punishable under FCPA, so long as the concern is controlled by the foreign government and performs a function it treats as its own, and upheld the lengthy prison sentences of two Florida men for bribing officials at a Haitian company.