Global Anti-Bribery Year-in-Review: 2015 Developments and Predictions for 2016

I. Introduction: Enforcement Trends and Priorities –

Among other significant developments, 2015 saw the U.S. Department of Justice (the “DOJ” or the “Department”) document a policy priority of holding individuals accountable for corporate wrongdoing. This policy was laid out in the “Yates Memorandum” —announced by Deputy Assistant Attorney General Sally Quillian Yates—and related changes the DOJ made to the U.S. Attorney’s Manual. The most significant aspect of the Yates Memorandum is the requirement that corporations turn over “all relevant facts relating to the individuals responsible for the misconduct” in order to be eligible for any cooperation credit. This requirement creates questions about how the DOJ will deal with aspects of attorney client privilege law and foreign blocking statutes that intersect with the “all relevant facts” requirement.

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LITIGATION/CONTROVERSY

February 2, 2016
Foreign Corrupt Practices Act Alert

Global Anti-Bribery Year-in-Review: 2015 Developments and Predictions
for 2016
I. Introduction: Enforcement Trends and Priorities
Among other significant developments, 2015 saw the U.S. Department of Justice (the “DOJ” or the
“Department”) document a policy priority of holding individuals accountable for corporate wrongdoing.
This policy was laid out in the “Yates Memorandum”—announced by Deputy Assistant Attorney General
Sally Quillian Yates—and related changes the DOJ made to the U.S. Attorney’s Manual. The most
significant aspect of the Yates Memorandum is the requirement that corporations turn over “all relevant
facts relating to the individuals responsible for the misconduct” in order to be eligible for any cooperation
credit. This requirement creates questions about how the DOJ will deal with aspects of attorney-client
privilege law and foreign blocking statutes that intersect with the “all relevant facts” requirement.
The commitment to pursuing more cases against individuals appears to be strong, and the DOJ does
appear to be passing on some corporate cases where it once might have insisted on a resolution. Going
by the statistics, the Yates Memorandum’s policy was reflected in the number of cases brought during the
year, although the policy was not announced until September. Last year the DOJ resolved with or
charged eight individuals in FCPA-related cases,1 as compared to only two individuals in 2014.2
Meanwhile, its tempo with respect to corporations decreased. It resolved such cases against only two
corporations (or groups of corporations),3 down from seven in 2014.4 The penalty amounts were lower,
with no corporate penalty cracking the “top ten” of FCPA resolutions in dollar amount, and none coming
close to the record $772 million that Alstom paid at the very end of 2014.5 Another possible consequence
of the new policy emphasis is that both of last year’s DOJ corporate resolutions were “package”
resolutions—the DOJ announced guilty pleas with individuals on the same day the DOJ announced an
agreement with the company related to the same conduct.

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DOJ and SEC Enforcement Actions 2005-2015
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However, it can be dangerous to extrapolate too much about the government’s enforcement agenda
based on a single year. While the DOJ last year brought more actions against individuals than in 2014, its
2015 total of eight was less than its 2013 total of sixteen.6
This year could easily see the DOJ announce significantly more than two FCPA actions with respect to
corporations; there are many corporate cases publicly reported to be in the pipeline, and the Department
has dedicated significantly increased resources to anti-corruption enforcement. It announced in 2015 that
it is hiring ten additional FCPA prosecutors and is also adding at least a dozen FBI agents solely focused
on FCPA cases. In early 2016, a senior DOJ official suggested that the number of cases may look very
different after just a few months.7
Even if the DOJ’s emphasis on individuals might mean that the mix of cases will continue to skew away
from those that result in a resolution with the company, compliance and investigations will continue to be
important priorities for global corporations. Even a case that is only likely to result in a resolution with, or
charge against, individuals creates work and headaches for corporate counsel, as well costs of
cooperating with the investigation and reputational damage to the company if its employees are charged
with wrongdoing. Moreover, whether or not the company is charged is a decision that likely will continue
to be made by the DOJ at the end of an investigation, after considerable time and resources have been
expended.
The U.S. Securities and Exchange Commission’s (the “SEC” or the “Commission”) headline numbers, on
the other hand, were more consistent with its previous pattern. It resolved with nine corporations8 and
charged or resolved with two individuals.9 As in prior years, most of the SEC’s FCPA resolutions with
corporations were based on violations of the FCPA’s books-and-records and internal-controls provisions,
with only three of the corporate cases including violations of the anti-bribery provisions. For the first time
since 2001, none of the corporations that executed a resolution with the SEC simultaneously executed
one with the DOJ. Again, this likely reflects the DOJ’s shift in emphasis—the DOJ does appear to be
passing on cases against corporations that in prior years it might well have treated more aggressively.
Notably, China continued to be a country with a concentration of corruption cases—three of the SEC’s
resolutions involved conduct in China. Two of those China resolutions involved payments to health care
providers, a reminder that such payments must be handled carefully in China and other countries where
many hospitals are state-owned entities.
We have noted previously the importance of designing compliance programs that are sensitive to the
risks posed by third-party payments. In 2015, as in recent years, third parties were involved in the majority
of FCPA cases that required entering into a resolution with the government. Both of the DOJ corporate
resolutions and six of the nine SEC corporate resolutions involved allegedly improper payments made
through third parties.
The continued focus on compliance programs crystallized last year with the Fraud Section’s hiring of Hui
Chen as a dedicated compliance expert. Chen will assist section attorneys in evaluating company
presentations about their compliance programs (which usually take place in the context of Filip factors
analyses10), will interface with monitors concerning their oversight of companies that have previously
resolved with the DOJ, and will train DOJ attorneys on the features of an effective compliance program.
In addition, after several years of news reports about financial institution hiring cases, 2015 saw the first
resolution of one. BNY Mellon—without admitting or denying the allegations—resolved the SEC’s
investigation into whether it hired interns in order to obtain business from a Middle East sovereign wealth
fund. The SEC’s Order sheds light on a gray area in FCPA enforcement: when, in the government’s view,
does hiring cross over from relationship building or providing a business courtesy into bestowing a benefit
on an official that is corrupt under the statute. WilmerHale represented BNY Mellon in this matter. The
case, and the government’s other 2015 resolutions, are discussed in more detail in Section III below.
Finally, the DOJ had its wings clipped—ever so slightly—by two rulings that limited its ability to use
conspiracy charges to pursue individuals who did not actually carry out any acts within the United States:
United States v. Hoskins, No. 3:12-CR-00238-JBA, 2015 WL 4774918 (D. Conn. Aug. 13, 2015), and
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United States v. Sidorenko, 102 F. Supp. 3d 1124 (N.D. Cal. 2015). These rulings, which are consistent
with a 2011 ruling in the “Africa Sting” case that addressed a similar issue without a written opinion, give
some comfort to individuals and entities abroad who do not fall into the traditional categories for FCPA
liability. The overall jurisdictional reach of the FCPA remains exceedingly broad, however, and there are
no legal developments on the horizon that would change that.
II. Key Investigation-Related Developments
This year saw several significant changes in the DOJ’s and SEC’s approaches to investigations and
enforcement generally. In this section we will discuss these significant cross-cutting trends, followed in
the next section by a discussion of specific cases.
A. The DOJ Brought Fewer Cases Against Corporations, More Against Individuals
The headline trend in anti-corruption investigations this year was the DOJ’s shift in emphasis toward
cases against individuals and apparently away from resolutions with companies. As noted above, that
shift is reflected in the number of actions the Department took with respect to each type of case, and also
apparently reflected in the DOJ’s use of “package” resolutions.
Beyond the numbers, Justice Department officials made several public comments characterizing the shift.
In January 2015, Assistant Attorney General Leslie R. Caldwell suggested to members of the San
Francisco legal community that deferred prosecution agreements “were a bit overused” and that they had
become the “default” method for resolving corporate investigations.11 She told the audience to expect
more declinations from the government.12 Caldwell also said the Criminal Division would aim to bring
more and larger cases under the FCPA.13
In April, Caldwell dialed up her message by saying the Criminal Division expects corporations to turn over
evidence of wrongdoing in a timely and complete way if they want cooperation credit.14 She emphasized
that companies must “identify culpable individuals—including senior executives if they were involved—
and provide the facts about their wrongdoing.”15 Caldwell acknowledged that the internal investigations
necessary to provide such evidence could cost companies substantial time and money. However, the
decision to incur those costs is made by the company, she said, noting that while the Department
“expect[s] internal investigations to be thorough, we do not expect companies to aimlessly boil the
ocean.”16 Instead, Caldwell suggested that companies should appropriately tailor investigations to root
out misconduct, identify wrongdoers, and provide all available facts.17 Broader surveys of a company’s
operations were not a requirement of the Department.18
These expectations were formalized in a September 9, 2015 policy memorandum authored by Deputy
Attorney General Sally Quillian Yates, known as the “Yates Memorandum.”19 The memorandum outlines
new policies designed to facilitate criminal cases against individuals. The most significant aspect of this
new policy, foreshadowed by Caldwell’s April remarks, requires that corporations provide the Department
with “all relevant facts relating to the individuals responsible for the misconduct” in order to receive any
cooperation credit.20 This “condition of cooperation” appears designed to focus the scope of corporate
investigations and disclosures to the government.21
At a conference sponsored by the Global Investigations Review and held at WilmerHale’s offices later in
September, Caldwell characterized the Yates Memorandum as “new policy guidance” that reinforced
simple existing Department considerations while also taking “a strong step forward” to reflect the
importance of individual accountability.22 She remarked that attorneys who frequently deal with the
Criminal Division in investigations might not see the new guidance as anything radical. However, those
who had previously advised their clients that the Department was more interested in corporate resolutions
and large fines, rather than obtaining evidence concerning individuals and holding them accountable,
“should hear a new message and see a different approach.”23
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The Yates Memorandum has also been incorporated into the revised U.S. Attorneys’ Manual (“USAM”).
The section on federal prosecution of business organizations now provides that “[i]n order for a company
to receive any consideration for cooperation . . ., the company must identify all individuals involved in or
responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the
Department all facts relating to that misconduct.”24 Yates acknowledged the change by saying, “[i]n the
past, cooperation credit was a sliding scale of sorts and companies could still receive at least some credit
for cooperation, even if they failed to fully disclose all facts about individuals. That’s changed now.”25
B. Questions Remain About How the Attorney-Client Privilege and Foreign Blocking
Statutes Will Affect the Yates Memorandum’s Implementation
The Yates Memorandum announcement almost immediately touched off concern about the ability of a
corporation to protect its attorney-client privilege. The memorandum’s policy of withholding cooperation
credit unless a company discloses “all relevant facts” about individual wrongdoers intersects with the
privilege, since privileged communications are often relevant to the government’s investigation of an
individual. Section 9-28.710 of the USAM has long provided that prosecutors should not ask for waivers
of “core” attorney-client communications or work product.26 While the Yates Memorandum does not
directly discuss the privilege, it suggests that this provision is undisturbed by stating that the requirement
of full cooperation exists “within the bounds of the law and legal privileges, see USAM 9-28.700 to 9-
28.760.”27 Caldwell has also said, “[T]he new guidance does not change existing department policy
regarding the attorney-client privilege or work product protection. Prosecutors will not request a corporate
waiver of these privileges in connection with a corporation’s cooperation.”28
Yates attempted to clarify the issue further in November by drawing a line between legal advice and facts:
“As we all know, legal advice is privileged,” she said. “Facts are not.”29 Yates said that, for example, notes
and memos created from an interview with a corporate employee need not be produced. But relevant
facts, “including the facts learned through those interviews,” must be turned over.30
While the DOJ’s reassurances are easily stated, the distinctions they draw may not be so simple. Sharing
the results of an internal investigation with the government can waive the privilege,31 and it is not clear
that companies can always disclose an underlying fact to the government without also disclosing an
investigation’s results. For example, a company may learn of a relevant fact through interviewing one of
its employees, and that fact may not be supported anywhere else in the record. If the government knows
that the only interview conducted with that employee occurred as part of the company’s internal
investigation, it may be difficult or even impossible for the company to share what it learned with the
government without also sharing how it learned it—through a privileged communication.
The Yates Memorandum’s relationship to privileged information may also depend on how the government
will use the information. To introduce a fact at trial, the government needs a statement or other admissible
evidence. If the only evidence of a fact exists as part of a privileged communication, the government will,
if it takes a case to trial, need that communication. The context of the communication may also be
important to the government in evaluating the strength of its case. For example, a statement of fact made
the same way in repeated interviews with company counsel has greater evidentiary value to the
government than a statement of the same fact obtained at the end an interview with counsel, after
repeated denials. Thus, the government’s evaluation of its case may require details about the
communication, a requirement that is difficult to square with the government’s insistence that it does not
seek privileged communications.
Foreign blocking statutes will also bear on the Yates Memorandum’s implementation. In an international
investigation, much of the relevant evidence possessed by the company may be located in countries with
blocking statutes that prohibit sharing the evidence with a foreign entity like the DOJ. Corporations have
long faced challenges in navigating the contours of such statutes, which are often vague. The DOJ, in
turn, has long been frustrated by the difficulty of evaluating companies’ claims that evidence cannot be
provided because of a blocking statute. The DOJ will presumably be reasonable, and will give
cooperation credit where information that is truly blocked by a foreign country’s statute is withheld, as
long as other relevant information is disclosed. (In such situations the DOJ often must pursue the withheld
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evidence by making an MLAT request to the foreign country.) But determining what is “truly blocked” and
what is not now takes on greater significance, despite the fact that the foreign statutes themselves have
become no easier to interpret.
Companies and corporate counsel will need additional guidance about how the DOJ will take into account
these legal principles that bear on the “all relevant facts” requirement. That guidance will begin to emerge
as cases are resolved under the new policy in 2016.
C. The SEC and DOJ Continued to Emphasize Voluntary Disclosure
The government continues to pitch the benefits of voluntary disclosure of corporate wrongdoing. SEC
Division of Enforcement Director Andrew Ceresney announced in November that his Division will only
recommend a Non-Prosecution Agreement (“NPA”) or a Deferred Prosecution Agreement (“DPA”) if a
company self-reports.32 Ceresney also cited the PBSJ case (discussed below in Section III.D) as a recent
example of the Commission having entered into a DPA with a company that self-reported.33 But Ceresney
made clear that while self-reporting was a necessary requirement, other discretionary factors including a
company’s self-policing, remediation, and cooperation would also be considered.34 He also affirmed that
NPAs and DPAs “reflect a significant level of cooperation and have been a relatively limited part of
Commission enforcement practice,” which “is appropriate and should continue to be the case.”35
It is not clear from Ceresney’s remarks whether the SEC is likely to use NPAs or DPAs any more or less
frequently than the once-every-year-or-two rate at which they have been employing them. Indeed, the
policy is in some ways not new; the only two other companies to resolve through such agreements had
also self-reported.36 Such agreements’ value over a no-admit-no-deny resolution may be limited in any
event: The main benefit to the company from this form of resolution, as opposed to entering into a no-
admit-no-deny settlement with the Commission, appears to be the lack of a formal enforcement action by
the SEC against the company. The most important takeaway from Ceresney’s remarks may be that
companies for whom the reputational or debarment consequences of a formal SEC enforcement action
are particularly severe now have an additional incentive in favor of self-reporting: That an NPA or DPA
with the SEC will be unavailable if they choose not to do so and the government later discovers the
wrongdoing.
Signs of efforts to encourage voluntary disclosure further have also surfaced from the DOJ. In November,
The Washington Post reported on an internal, draft DOJ policy that would “strongly recommend[] that
prosecutors should decline to bring charges against a company that voluntarily discloses violations of the
FCPA and cooperates with the government in its investigation.”37 Leaders from the DOJ and SEC passed
up an opportunity to roll out, or at least comment on, the draft policy at a conference later in November.
Instead, Kara Brockmeyer, FCPA Unit Chief at the SEC, and Patrick Stokes, FCPA Unit Chief for the
DOJ, appeared to emphasize the status quo approach to voluntary disclosure. Brockmeyer highlighted
the “exemplary cooperation” of PBSJ.38 Stokes pointed to the DOJ’s resolution with Alstom as an
example of how failure to self-report may penalize a company.39 However, the DOJ even considering
such a significant change in declination policy suggests a possible willingness to award more declinations
for self-reporting in the future.
D. The DOJ Hired Hui Chen, Compliance Counsel
In early November 2015, the DOJ announced that it had hired Hui Chen as a full-time compliance expert
consultant.40 Chen arrived at the DOJ with experience both as a corporate compliance professional and
as a federal prosecutor. From 1991 to 1994, Chen prosecuted criminal cases as part of the Attorney
General’s Honors Program before serving as an Assistant United States Attorney at the U.S. Attorney’s
Office in the Eastern District of New York. 41 After stints at Microsoft and Pfizer, Chen most recently
served as Global Head for Anti-Bribery and Corruption at Standard Chartered Bank.42
Since that announcement, the DOJ has made a number of statements clarifying the scope of Chen’s
duties.43 Caldwell stated that Chen would be “interacting with the compliance community to seek input” on
how the community and DOJ can advance their mutual interest in strong corporate compliance
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programs.44 Caldwell stressed that the hiring of Chen does not signify that the DOJ is moving toward
recognizing or instituting a “compliance defense.”45 In other words, despite pressure from many in the
compliance community, the DOJ will not permit a company to rely on its good faith compliance efforts,
including its anti-corruption policies and procedures, as an absolute defense where a company employee
has circumvented those policies and procedures.46
At an FCPA conference in November 2015, Andrew Weissmann, Chief of the Fraud Section of DOJ’s
Criminal Division, provided additional detail about what he described as Chen’s three major
responsibilities. First, Chen will play an active role in assisting DOJ prosecutors when companies make
compliance presentations to DOJ.47 Second, Chen will be working with monitors, “making sure they’re not
having problems, seeing what issues they’re confronting, and also making sure that . . . they’re fulfilling
the job they’re assigned to do.”48 Third, Chen will train DOJ prosecutors in better assessing the Filip
factors related to compliance.49 In the same session, Chen revealed the four questions she will be asking
in evaluating a company’s compliance program: (1) whether it is thoughtfully designed, (2) whether it is
operational, (3) whether there is good communication among the stakeholders, and (4) whether it is
adequately resourced.50
Chen appears to be positioning herself as an intermediary of sorts between the DOJ and companies and
has stressed that she wants to “spend a lot of time listening to the compliance community.”51 Chen has
stated that she plans to organize compliance town hall meetings where she will meet with in-house
compliance counsel—outside the presence of DOJ lawyers—to discuss the DOJ’s approach to
compliance and what is and is not working with that approach.52 She also has emphasized that she is
acting as a consultant to the DOJ, and is not a DOJ employee or prosecutor.53
It is unclear what impact Chen’s involvement will have on related issues like compliance-program
requirements and monitors. In addition, whether Chen will have any impact on the SEC, which frequently
brings internal-controls charges in its FCPA enforcement actions, also remains to be seen.
III. Notable Features of Corporate Resolutions and Significant Ongoing Investigations
A. The SEC Resolved for the First Time a Case Relating to the Hiring Practices of
Financial Institutions
In August 2015, the SEC announced the first settlement to come out of its investigation into the hiring
practices of financial institutions.54 The Bank of New York Mellon Corporation (“BNY Mellon”),
represented by WilmerHale, agreed to pay $14.8 million to resolve the SEC’s allegations, which BNY
Mellon neither admitted nor denied, that BNY Mellon hired three interns who were relatives of foreign
government officials in exchange for business.55 According to the SEC, the foreign government officials
were employed by an unidentified sovereign wealth fund for a Middle Eastern country (the “Sovereign
Wealth Fund”), and BNY Mellon provided internships to the relatives—one of whom was unpaid—to win
and retain business managing and servicing the assets of the Sovereign Wealth Fund.56 The SEC alleged
that BNY Mellon had violated the anti-bribery and internal-controls provisions of the FCPA.57
The resolution is notable because it begins to shed light on what conduct related to hiring practices will be
viewed by the SEC as sufficient to warrant bringing FCPA charges. Specifically, the SEC alleged:
• Request from Government Officials. In February 2010, two officials employed by the
Sovereign Wealth Fund, both with influence in the allocation of new assets, requested
that BNY Mellon provide internships to some of their family members.58 Both officials
allegedly made numerous follow-up requests about the status, timing, and other details of
the internships for their relatives after the internships had been offered.59
• Alleged Intent to Obtain Business. The Order alleged that certain BNY Mellon
employees viewed delivering the internships as requested as a way to influence the
officials’ decisions.60 The Order supported this assertion with quotations from a BNY
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Mellon custody relationship manager who stated that granting an official’s hiring request
was “the only way” to increase BNY Mellon’s share of business, and that “Its [sic] silly
things like this that help influence who ends up with more assets / retaining dominant
position.”61
• Alleged Poor Performance and Special Treatment. The SEC alleged that the relatives
of the two officials did not meet the standards of BNY Mellon’s highly competitive
internship program.62 The SEC further alleged that two of the three interns were paid
more than other interns with the same qualifications, and that all three of these interns
worked outside of the normal periods for the internships while performing poorly overall.63
Notably, there was no allegation in the SEC’s Order that anyone from BNY Mellon communicated to
anyone at the Sovereign Wealth Fund that the internships were being provided in return for business, nor
was there any allegation that anyone at the Sovereign Wealth Fund offered to provide business in return
for the internships. Also, while the sanctions section of the SEC’s Order imposed disgorgement, there
was no allegation in the body of the document explaining how any profits were caused by the provision of
the internships. It is also noteworthy that the internships were provided not to government officials, but to
relatives of government officials, with no allegation that any government officials received any pecuniary
benefit from the internships, though the SEC alleged that the officials obtained “significant personal
value.” The SEC’s charges for such intangible benefits, as it has suggested in other cases involving
charitable contributions, raise questions as to the standard for satisfying the “thing of value” element of
the FCPA.
In addition to being the first hiring practices resolution, the BNY Mellon case is also the first case to be
resolved from the SEC’s industry-wide sovereign wealth fund sweep initiated in 2011.64 The case is
notable for still another reason: It is the first-ever FCPA resolution with the SEC that did not include a
books-and-records violation. This stems from the fact that there was no allegation that BNY Mellon
described the internships inaccurately in its books. This further underscores the unconventional nature of
the “thing of value” in the employment cases.
News reports in 2015 indicated that investigations into several other banks’ hiring practices remain
active.65
B. The DOJ’s Corporate Resolutions Involved Third Parties and Reflected the DOJ’s
Emphasis on Holding Individuals Accountable
The DOJ resolved only two cases with corporations in 2015, the lowest number of corporate resolutions
in FCPA cases since 2006. On June 16, 2015, the DOJ entered into an NPA with IAP Worldwide Services
Inc. (“IAP”), a Florida-based defense and government contracting company. IAP agreed to pay a $7.1
million penalty.66 In the NPA, IAP admitted to FCPA violations in connection with a homeland security
project in Kuwait that was overseen by Kuwait’s Ministry of the Interior (“MOI”). IAP admitted to conspiring
with Kuwaiti officials to use a shell company to win the bidding for Phase I of the two-phase contract so
that it could tailor the requirements for Phase II to IAP’s strengths to gain an advantage in bidding for
Phase II, the larger and more lucrative contract.67
According to the NPA, IAP and the Kuwaiti officials agreed that IAP would receive approximately $4
million for the Phase I contract, and that half of that amount would be diverted to a Kuwaiti consultant who
would use the money to pay bribes to the Kuwaiti officials.68 It was agreed that the consultant would
inflate his invoices to IAP in order to hide the transfer of the money to be used to pay the bribes. Between
September 2006 and March 2007, IAP and its co-conspirators paid the equivalent of more than $1.78
million to the consultant with the understanding that some or all of the money would then be paid to the
Kuwaiti officials as bribes.69
About a month later, on July 17, 2015, the DOJ announced it had entered into a deferred prosecution
agreement (“DPA”) with Louis Berger International (“LBI”), a New Jersey-based construction management
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company. LBI agreed to pay a $17.1 million fine.70 LBI admitted to specific direct payments, as well as
indirect payments made through a consulting company, vendors, and other intermediaries, to officials in
India, Indonesia, Vietnam, and Kuwait to secure construction contracts.71 The admitted bribe payments
totaled approximately $3.93 million.72 LBI employees referred to some of the payments as “commitment
fees” or “counterpart per diems” rather than bribe payments.73
Berger Group Holdings, Inc. (“BGH”), LBI’s parent company, had conducted an internal investigation and
self-reported the misconduct, but only “after the government made LBI and BGH aware of a False Claims
Act investigation.” 74 In other words, the company appears to have discovered and reported to the
government FCPA misconduct that the government was unaware of, but the company only did so
because it was investigating a different allegation that the government had communicated to LBI. That
LBI’s self-report came after some government intervention may have prevented LBI from obtaining a non-
prosecution agreement or declination. This type of voluntary, though not unprompted, report to the
government is likely one of the scenarios that senior DOJ officials will have to hash out if they are to move
forward on instituting a general policy awarding declinations whenever a company does self-report. That
proposed policy change is discussed in section II.C above.
As is often the case, both the IAP case and the LBI case involved the use of third parties to effectuate at
least some of the alleged bribe payments. The same is true for at least six of the nine FCPA resolutions
completed between corporations and the SEC last year. The third parties involved in these cases
included general contractors, subcontractors, travel agents, distributors, and vendors. These types of
conduits for improper payments suggest that a shift is taking place away from the “traditional” FCPA third
parties: consultants and sales agents. It may be the case that as compliance programs have adjusted to
guard against the most straightforward types of third-party payment abuse, employees have turned to
traditionally low-risk third parties to carry out improper payments. In other words, even compliance
programs that were reformed years ago to take account of third-party risks may need to be re-examined
to ensure that entities thought to be in lower “risk tiers” are adequately monitored.
The IAP and LBI resolutions are also noteworthy because in both cases, the DOJ announced them on the
same day that it announced guilty pleas by one or more individuals related to the same conduct. This may
be in part a reflection of the DOJ’s new emphasis on holding individuals accountable for corporate
wrongdoing, although both were announced before the Yates Memorandum was issued.
Both IAP and LBI are privately held companies, which explains why the SEC did not charge either
company.
C. Resolutions of SEC Travel and Entertainment Cases Were a Reminder of the
Importance of Well-Crafted Compliance Policies for Such Expenditures
Two of this year’s SEC resolutions concerned companies providing government officials with free travel
and entertainment.
1. BHP Billiton
In May 2015, the SEC charged BHP Billiton Ltd. and BHP Billiton Plc (collectively, “BHP”), an Australia-
based mining company, with violating the internal-controls and books-and-records provisions of the FCPA
in connection with entertaining government officials at the 2008 Summer Olympics held in Beijing,
China.75 To settle the charges, BHP agreed to pay a $25 million civil penalty and to report to the SEC on
the operation of its FCPA compliance program for a one-year period.76 The company neither admitted nor
denied the SEC’s allegations.77
As an official sponsor of the Beijing Olympics, BHP received priority access to tickets, hospitality suites,
and accommodations during the 2008 Olympic Games.78 “[T]o strengthen relationships with key local and
global stakeholders, e.g.: Government Ministries, Suppliers and Customers,”79 the company invited 176
government officials, plus the spouses of 102 of those officials, to attend the Games at the company’s
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expense.80 According to the SEC Order, “[s]ixty of the officials ultimately attended, 24 of them with their
spouses or guests.”81 The officials hailed primarily from countries in Africa and Asia “with well-known
histories of corruption” and allegedly received hospitality packages (valued at $12,000 to $16,000 per
package), which included event tickets, sightseeing excursions, and luxury hotel accommodations.82 BHP
executives also allegedly approved the provision of airfares to some officials and their spouses or
guests.83
In a recent public speech, Ceresney mentioned the BHP case as one of the Commission’s “significant
actions against prominent companies” in 2015.84 The $25 million penalty paid by BHP does indeed
appear to be the largest-ever civil penalty in an FCPA case. That superlative comes with a caveat,
however: The SEC took the rare step of allowing BHP to pay only a civil penalty and no disgorgement, a
decision discussed below in Section III.H.
2. FLIR Systems
In April 2015, an Oregon-based defense technology company, FLIR Systems, Inc. (“FLIR”), resolved an
SEC administrative proceeding relating to FLIR’s provision of travel and entertainment to government
officials from Saudi Arabia and Egypt.85 This resolution followed the SEC’s resolution with two former
FLIR employees in 2014 based on the same alleged wrongdoing.86 The conduct at issue—discovered
after FLIR received a complaint letter from a third-party agent—concerned a “world tour” for Saudi
Ministry of Interior (“MOI”) officials unrelated to the ostensible business purpose of the trip, additional
travel for MOI officials that could not be verified as business-related, a trip to Sweden for Egyptian
Ministry of Defense (“MOD”) officials that included leisure elements, and five expensive watches for MOI
officials.87 In settling the SEC charges, FLIR neither admitted nor denied the conduct.88 The company
agreed to a two-year reporting period and paid approximately $9.5 million in disgorgement, prejudgment
interest, and penalty.89 The SEC’s Order alleged violations of the anti-bribery, books-and-records, and
internal-controls provisions.90
The “world tour” was provided to MOI officials under the guise of a “Factory Acceptance Test” (the “Test”),
which FLIR agreed to as part of its $12.9 million contract with the MOI to sell binoculars with infrared
technology.91 The Test was allegedly seen by FLIR as key to future contracts and bookings with MOI.92
According to the SEC, in early 2009, the head of the Middle East office and his subordinate planned what
would become known as the “world tour” for MOI officials to take place before and after the Test.93 The
20-night trip included stops in Casablanca, Beirut, Paris, and Dubai, and allegedly involved only minimal
business-related activity, such as five hours spent at FLIR’s facility in Boston inspecting equipment, three
other short (one to two hour) trips to the facility, and short hotel room meetings during the course of the
seven-day stay in the Boston area.94 In addition, the SEC alleged that FLIR spent approximately $40,000
on additional travel for the same MOI officials in 2008-2010, spent $7,000 on expensive watches for MOI
officials and attempted to conceal the cost and nature of these gifts, and paid the majority of the costs for
officials from the Egyptian MOD to attend a Factory Acceptance Test in Stockholm, Sweden in 2011, a
trip that cost nearly $43,000.95
Both the BHP case and the FLIR case are reminders about the importance of structuring a compliance
program that identifies and ultimately prevents excessive and lavish travel and entertainment for
government officials.96 In the FLIR case, the SEC faulted the company for having “no controls or policies
in place governing the use of foreign travel agencies,” and for making sales managers solely responsible
for sales staff expense approvals.97
BHP had in fact recognized that “inviting government officials to the Olympics created a heightened risk of
violating anti-corruption laws.”98 Consequently, the company required business managers to complete a
hospitality application form for any individuals they sought to invite to the Olympics.99 However, according
to the SEC, BHP failed to provide employees and executives with any specific training on how to
complete the forms or how to evaluate the bribery risks associated with each of the invitations.100
Moreover, BHP allegedly did not implement procedures to ensure meaningful review and approval of the
forms by personnel outside the manager’s business line.101 As a result, according to the SEC, almost all
of the hospitality applications for government officials were approved, though a number of the hospitality
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applications were inaccurate or incomplete or included invitations to government officials connected to
pending contract negotiations or regulatory dealings such as the company’s efforts to obtain access
rights.102
These shortcomings led SEC Associate Enforcement Director Antonia Chion to comment that a “‘check
the box’ compliance approach of forms over substance is not enough to comply with the FCPA.”103 For
gifts and travel, approval forms and a process for review for red flags by personnel outside the business
unit can be a useful tool. However, the government will still fault companies that do not back up such
controls with the resources to carry out meaningful review and actually deny employees’ requests for
approval when proposed gifts are inappropriate.
D. The SEC Took the Relatively Rare Step of Resolving a Case Through a DPA
On January 22, 2015, the SEC announced it would enter into a two-year DPA with The Atkins North
America Holdings Corporation (“Atkins”)—formerly known as PBSJ Corporation (“PBSJ”), a Florida-based
issuer—alleging anti-bribery, books-and-records, and internal-controls violations.104 Atkins agreed to pay
a total amount of $3,407,875 in the settlement, and the SEC also charged one employee with bribery in
an administrative proceeding.105
The DPA stated that in 2009, PBSJ’s wholly owned subsidiary PBS&J International Inc. (“PBS&J-I”) won
multi-million dollar construction contracts for work in Qatar and elsewhere.106 A high-ranking PBS&J-I
employee allegedly offered future bribes, and a letter of credit that was authorized as a precondition, to a
Qatari official in exchange for official action to help advance contract bids on several ventures. The
payments were to be facilitated through a local partnering company controlled by the Qatari official that
would receive “agency fees” from PBS&J-I. Through this scheme, with help from the Qatari official,
PBS&J-I succeeded in securing a $35.6 million contract for a light rail transit project in Qatar and a $25
million contract on a project to develop a resort in Morocco.107 PBSJ discovered the corrupt arrangement
and launched an investigation before the agency fees were actually paid.108
While apparently only a single high-ranking PBS&J-I employee had knowledge of the corrupt scheme, the
DPA stated that PBSJ could have discovered it had it kept adequate records and controls and conducted
“meaningful” due diligence at the time. PBSJ ignored several “red flags,” according to the SEC, including
inflated contract bids by its subsidiary that concealed payments to the local partner company, and receipt
of confidential information in a sealed bidding process.109
The SEC’s use of a DPA in this case was only the third time that the Commission has resolved an FCPA
case using either a DPA or NPA. Its use here appears to have been justified, in the SEC’s view, by the
company having self-reported (to both the SEC and DOJ); taken immediate steps to end the misconduct,
including suspending Walid Hatoum (who was charged separately—see below in Section IV.C) and
reprimanding four other employees; enhanced its compliance program; and provided “substantial”
cooperation to the SEC staff in its investigation.110 As discussed above in Section II.C, senior SEC staff
have drawn attention to the PBSJ resolution to try to encourage more self-reporting going forward.
E. SEC Resolutions Provided Reminders of the Compliance Challenges in Taking Part
in a Joint Venture, and of the Value of Cooperation
On February 24, 2015, the SEC resolved a case with Goodyear Tire & Rubber Company (“Goodyear”)
over alleged violations of the books-and-records and internal-controls provisions. The SEC’s Order
alleged that Goodyear’s joint ventures (“JVs”) in Kenya and Angola made over $3.2 million in bribes to
employees of private companies, government-owned entities, and local authorities.111 Without admitting
or denying the SEC’s allegations, Goodyear entered into a settlement with the SEC and agreed to pay
$14,122,525 in disgorgement and $2,105,540 in prejudgment interest.112 No civil penalty was imposed.
Over the course of five years, according to the SEC, Goodyear’s subsidiaries, Treadsetters Tyres in
Kenya, and Trentyre Angola in Angola, paid over $3.2 million in bribes, mostly in cash, to obtain tire
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sales.113 In Kenya, Goodyear acquired a minority interest and then a majority interest in Treadsetters, but
Treadsetters’ founders and local general manager ran the subsidiary’s day-to-day operations.114
Treadsetters’ management, in particular the general manager and finance director, paid over $1.5 million
in bribes, mostly in cash, to employees of government-owned or affiliated entities, including the Kenya
Ports Authority and the Armed Forces Canteen Organization, as well as private companies, to obtain
business, and recorded those bribes as expenses for promotional products.115 In addition, Treadsetters
made over $14,000 in improper payments to local government officials, including police and city council
employees.116 The SEC alleged that Treadsetters’ practice “was routine and appears to have been in
place prior to Goodyear’s acquisition.”117
In addition, Trentyre Angola, which was wholly owned by Goodyear, allegedly engaged in a bribery
scheme put in place by its former general manager to make over $1.6 million in bribes to employees of
government-owned or affiliated entities and private companies, including to employees of its largest
customer, the Catoca Diamond Mine, a consortium of mining interests that included other countries’
mining entities.118
The Goodyear case is an instance in which particularly strong cooperation with the government appears
to have helped the company reach a favorable resolution, even though there is no suggestion that
Goodyear self-reported. The cease-and-desist order explicitly noted that “the Commission is not imposing
a civil penalty based upon [Goodyear’s] cooperation in a Commission investigation and related
enforcement action.”119
The Goodyear case also underlines the broad reach of the SEC’s authority under the books-and-records
provision. That provision, of course, requires that company records accurately reflect, in reasonable
detail, all company transactions, not just payments to foreign government officials.120 Using this authority,
the SEC alleged in its Order that Goodyear had failed to record accurately improper payments to private
entities as well as government entities, in violation of the books-and-records violation.121 This use of the
books-and-records provision is notable, although not unique, and highlights the importance of not
overlooking commercial bribery when designing and managing compliance programs.
Another joint venture case resolved in 2015 was the Bristol-Myers Squibb (“BMS”) case. On October 5,
2015, BMS and the SEC resolved an FCPA investigation into BMS’s 60%-owned Chinese joint venture
with a cease-and-desist order and a payment of just over $14 million, $11.44 million of which represented
disgorgement of profits, $2.75 million of which was a civil penalty, and $500,000 of which was
prejudgment interest.122 The SEC’s Order stated that certain employees of BMS’s joint venture generated
funds that were used to pay improper benefits to health care providers working for state-owned and state-
controlled hospitals in China.123 Such conduct included employees using funds derived from travel and
expense claims to provide food and personal care items, shopping cards, jewelry, sightseeing, and cash
payments to providers in order to induce them to prescribe BMS medications.124 The Order also pointed
to references in documents to “investments” made in order to obtain sales, such as offering speaking
engagements, and conference and meeting sponsorships to health care providers in exchange for
prescriptions.125 The Order faulted BMS for failing to respond to allegations made by employees of
improper payments and audit findings of weak controls, for not adequately training the BMS sales force in
China, and for devoting insufficient resources to FCPA compliance.126 The BMS case is a reminder for
companies that operate in countries (like China) where many businesspeople are also government
officials to be aware of the potential FCPA implications of providing benefits to individuals in such dual
roles.
Both the Goodyear case and the BMS case are a reminder that joint ventures present particular
compliance challenges. This is even more true for those ventures in which a U.S. or U.S.-listed company
takes a majority position but permits previous management to continue to run the business. Part of the
strategy behind such ventures is often to use the expertise of local managers. However, companies still
must implement controls that will give the parent company insight into how the joint venture is actually
spending its money, and the ability to stop improper payments.
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F. SEC Resolutions Continued to Reflect the Commission’s “Strict Liability”
Approach to Books-and-Records Violations and Internal-Controls Violations
The Goodyear case also reflects the SEC’s continued “strict liability” approach to books-and-records
violations. There was no allegation in the SEC’s cease-and-desist order that Goodyear, the parent
company, had any knowledge of its African subsidiaries’ payments of bribes to employees of government-
affiliated companies and private companies and to local government officials.127 Rather, the SEC charged
the parent company with violating the FCPA’s books-and-records provision because the subsidiaries’
inaccurate books and records were consolidated into Goodyear’s books and records.128 Further, it
charged the internal-controls violation based on the parent company having “fail[ed] to devise and
maintain sufficient accounting controls to prevent and detect [the subsidiaries’] improper payments.”129
Similarly, in the Mead Johnson case (discussed in more detail below), there was no allegation that Mead
Johnson, the U.S.-based parent company, knew of any misconduct by its Chinese subsidiary.130 Rather,
Mead Johnson was charged with violating the FCPA’s books-and-records provision because its records
“were incomplete and did not reflect that a portion of the Distributor Allowance was being used contrary to
Mead Johnson’s policies.”131
While this type of strict liability for books-and-records violations has been the SEC’s effective standard for
many years, there was a time when the agency articulated a different view. In 1981, the SEC Chairman
stated that “inadvertent recordkeeping mistakes will not give rise to Commission enforcement
proceedings” under the books-and-records provision, “nor could a company be enjoined for a falsification
of which its management, broadly defined, was not aware and reasonably should not have known.”132
Goodyear and Mead Johnson are reminders that this is simply not the agency’s approach today. Instead,
the SEC seems committed to imposing a strict-liability standard on parent companies for their
subsidiaries’ books-and-records violations, even where the parent companies may have had no
knowledge of any such issues.
One potential development to watch in the coming year is the SEC’s recently launched civil probe over
possible violations of federal bribery laws involving Fédération International de Football Association
(“FIFA”) soccer officials.133 The FCPA’s anti-bribery laws apply only to payments made to foreign
government officials, an element that may or may not exist in this investigation. The books-and-records
provision, however, has no such limitation, and thus the government, as it has done in the past, might
charge issuers with books-and-records violations despite the lack of all the elements necessary to bring
an FCPA bribery charge.
Relatedly, each time the SEC continues its practice of including an internal-controls violation in virtually
every corporate FCPA resolution, it suggests the Commission takes an exceedingly broad view of what
constitutes “a system of internal accounting controls
sufficient to provide reasonable assurances” that a
company’s books are reliable.134 Given the dozens
and dozens of cases the SEC has resolved in the last
decade, it would seem at least some involved the
type of payments that even “reasonable” controls
would not identify and prevent. With the exception of
the Garth Peterson case involving Morgan Stanley,135
the SEC has concluded differently.
Relatedly, the SEC’s strict liability approach to
internal controls is reflected in the kinds of controls
that the SEC has found to be deficient. For example,
in the BNY Mellon case, summarized above, the SEC alleged that the bank’s hiring practices violated the
internal-controls provision. The internal-controls provision requires issuers to “devise and maintain a
system of internal accounting controls sufficient to provide reasonable assurances that”:
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• Transactions are executed and recorded appropriately;
• Transactions are recorded as necessary to permit preparation of financial statements and
to maintain accountability;
• Unauthorized access to assets is prevented; and
• Recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.136
The SEC Order, however, did not explain how compliance procedures relating to hiring constitute
“accounting” controls. The BNY Mellon case, like other cases, suggests that the SEC takes a very broad
view of the word “accounting” in the statute, essentially treating the statute as if it regulated all compliance
controls, which it does not. The SEC’s use of the internal-controls provision in virtually every case seems
at odds with the statutory language and intent.
G. An SEC Resolution Addressed an Allegation That Was Not Immediately Reported
by the Company to the Government
On July 28, 2015, Mead Johnson Nutrition Company (“Mead Johnson”) settled with the SEC charges that
Mead Johnson’s Chinese subsidiary made more than $2 million in improper payments to health care
professionals at government-owned hospitals to recommend the company’s infant formula nutrition
products to patients.137 Mead Johnson’s majority-owned Chinese subsidiary, Mead Johnson Nutrition
(China) Co., Ltd. (“Mead Johnson China”), allegedly misused marketing and sales funds and failed to
record accurately the improper payments in its books and records; the subsidiary’s books and records
were then consolidated into Mead Johnson’s books and records, “thereby causing Mead Johnson’s books
and records to be inaccurate.”138 Without admitting or denying the SEC’s findings, Mead Johnson entered
into a $12 million settlement of the SEC’s charges that it violated the FCPA’s books-and-records and
internal-controls provisions.139 The settlement included over $7.7 million in disgorgement, $1.26 million in
prejudgment interest, and a $3 million penalty.140
Mead Johnson China used third-party distributors to market, sell, and distribute its infant formula products
in China, and gave the third-party distributors “distributor allowance” funds to market and sell Mead
Johnson products.141 By contract, the distributor allowance funds belonged to the distributors, but Mead
Johnson China employees were able to exercise some control over how the allowance was spent.142
Mead Johnson had internal policies “to comport with the FCPA and local laws, and to prevent related
illegal and unethical conduct,” including policies prohibiting improper payments and gifts to healthcare
professionals to influence their recommendation of the company’s products.143 Despite these internal
policies, Mead Johnson China employees, from 2008 to 2013, caused the distributor allowance funds to
be paid to health-care providers at state-owned hospitals to recommend Mead Johnson’s products to
patients and collect patients’ contact information for marketing purposes.144
Mead Johnson had received in 2011 an allegation about its Chinese subsidiary’s possible FCPA
violations through the use of distributor allowance funds.145 At that time, Mead Johnson conducted an
internal investigation that found no evidence of improper use of distributor allowance funds, but still
elected to discontinue their use.146 The SEC appeared to fault Mead Johnson for not self-reporting the
initial allegation and for not “promptly” disclosing the existence of the allegation once the SEC opened its
inquiry.147 It is unclear exactly how serious these alleged omissions were in the SEC’s view, but the
Commission noted them before praising Mead Johnson for “subsequently provid[ing] extensive and
thorough cooperation.”148 Withholding from the government an unconfirmed allegation should not, of
course, be viewed as gravely as a company’s failure to self-report confirmed wrongdoing. Still, this case
suggests that when the government opens an investigation, it will expect companies to disclose previous
related allegations.
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H. The SEC in Several Cases Took the Relatively Rare Step of Allowing a Company to
Resolve By Paying Only a Civil Penalty Without Paying Disgorgement
Three times in 2015, the SEC did something it normally does not do: Allow a company to resolve a case
by paying only a civil penalty and not disgorging the profits it supposedly obtained through its alleged
improper payments. In addition to the BHP case, discussed above, the SEC also did not seek
disgorgement in its 2015 resolutions with Hyperdynamics and Hitachi.
On September 29, 2015, Houston-based oil and gas exploration company Hyperdynamics Corporation
(“Hyperdynamics”) and the SEC resolved an FCPA investigation into books-and-records violations with an
administrative cease-and-desist order and payment of a $75,000 civil penalty.149 The Order stated that
Hyperdynamics violated the books-and-records and internal-controls provisions when it failed to record
accurately $130,000 in payments made from July 2007 to October 2008 by its subsidiary based in the
Republic of Guinea.150 Although the payments were recorded as public relations and lobbying expenses,
the SEC stated, Hyperdynamics lacked sufficient supporting documentation to determine whether the
services were actually provided and to identify the ultimate recipient of the funds.151 It appears that the
SEC may not have required Hyperdynamics to pay disgorgement because the total amount of improper
payments was relatively small, and there was apparently no conclusive evidence that the payments were
bribes. The case thus seems similar to the Oracle case from 2012, in which Oracle Corporation was only
required to pay a $2.1 million penalty, with no disgorgement.152 If payments are not bribes, there ought
not be any profits to disgorge. That said, in other cases the SEC has often taken an expansive view of its
ability to collect disgorgement without a clear causal connection to profits.
The other two cases in which the SEC did not require a company to pay disgorgement last year involved
significantly larger amounts of improper payments, and the SEC’s decisions were thus more interesting.
One is the BHP case. As noted above in Section III.C, BHP was alleged to have hosted 60 government
officials at the Olympics; if each of these officials truly granted the company a profitable contract, BHP’s
disgorgement figure in theory could have been quite large. It may have been that the SEC could not
demonstrate that any contracts were provided in connection with the entertainment at issue.
The other is a September 2015 case in which the Japan-based multinational conglomerate Hitachi, Ltd.
(“Hitachi”) agreed to pay a civil penalty of US$19 million to settle SEC charges, without admitting or
denying the SEC’s allegations that Hitachi violated the books-and-records and internal-controls provisions
of the FCPA.153 According to the SEC, Hitachi inaccurately recorded improper payments funneled through
a front company to South Africa’s ruling political party in connection with contracts to build two multi-billion
dollar power plants.154
The SEC alleged that, in 2005, Hitachi Power Europe GmbH (“HPE”), a German-based subsidiary wholly
owned by Hitachi, sold 25% of the stock in Hitachi Power Africa (“HPA”), a newly created South Africa-
based subsidiary, at a below market value to Chancellor House Holdings (Pty) Ltd. (“Chancellor”), a
South African investment firm.155 Hitachi allegedly recognized that Chancellor had strong ties with the
political party in power, the African National Congress (“ANC”).156 HPA allegedly agreed in a contract
separate from the stock sale agreement to pay Chancellor “success fees” for exercising Chancellor’s
influence with the ANC to assist HPA in obtaining government contracts.157 The SEC’s Order also
suggested that, as a result of Chancellor’s assistance, HPA was awarded two power station contracts that
together accounted for approximately $5.6 billion in business being awarded to Hitachi.158 According to
the SEC, therefore, HPA paid approximately $1.12 million in “success fees” that were recorded in HPA’s
books and records as “consulting fees.”159 The SEC alleged that HPA also paid Chancellor approximately
$5 million in “dividends” based on profits derived from the contracts.160 The Order noted that as HPA was
bidding for the contracts, and by the time the “success fees” and “dividends” were paid, Chancellor had
been publicly reported to be a “funding vehicle” and a “front” for the ANC.161 HPA allegedly failed to reflect
in its books and records that these amounts were actually paid to the ANC in exchange for aiding HPA in
securing government contracts.162 The SEC further claimed that Hitachi’s internal controls failed when the
dividends paid to Chancellor were not flagged as payments to a foreign political party in exchange for
obtaining government contracts.163
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In neither of these two cases did the Commission explain the reasons for these departures from its usual
practice. Two factors might be at play. First, in both cases, had the SEC applied its legal theory rigidly,
the disgorgement numbers could have been extremely large. The potential business at stake from some
60 government officials in the BHP case could have been enormous, and the SEC asserted that HPA’s
power station contracts accounted for approximately $5.6 billion in business for Hitachi. Second, at least
with respect to the BHP case, the SEC’s Order provides no indication that the travel and entertainment in
that case actually caused any business benefits. Whatever the reasons, both cases are precedents that
SEC enforcement attorneys will hear cited frequently by defense counsel in 2016.
IV. Notable Aspects of Individual Resolutions
Consistent with the DOJ’s statements that it was emphasizing holding individuals accountable for FCPA
violations, the DOJ either resolved through pleas, or filed charging instruments against, eight individuals
in 2015. The SEC charged two individuals in 2015, slightly down from its count of four individuals in 2014.
Noteworthy features of these resolutions are summarized below.
A. The DOJ’s Two Resolutions Were Both “Package” Resolutions
As noted above, the DOJ took guilty pleas from one or more individuals alongside and at the same time
as both of its announcements of corporate resolutions in 2015. As the Department announced the DPA in
the Louis Berger case, it also announced that two company executives, Richard Hirsch and James
McClung, had pleaded guilty to counts of conspiracy to violate the FCPA and violating the FCPA. Hirsch
had been responsible for LBI’s operations in Indonesia, Thailand, the Philippines, and Vietnam.164
McClung had the same role for India and, subsequent to Hirsch, Vietnam.165 In connection with the IAP
NPA, the DOJ announced that it had taken a guilty plea from James Michael Rama to one count of
conspiracy to violate the FCPA for his role in the company’s bribery scheme.166 Rama, who was IAP’s
Vice President of Special Programs and Projects, was sentenced in October 2015 to four months in
prison.167
Notably, the government appeared to have significant evidence of these executives’ knowledge of the
bribe payments and the use of third parties as intermediaries. For example, when an agent emailed
Hirsch suggesting a plan to use a consultant as lead contractor, so that LBI would be insulated from
making bribe payments directly, Hirsch responded: “[e]xcellent idea to sub to another firm as the lead
which would be responsible for client relations. I am not willing to pay any commitment fees, however we
could agree to a ‘management fee’ taken from our invoices by the lead firm.”168 McClung similarly
received email messages describing government officials’ demands to be paid and bribe payments that
had already gone out.169 Hirsch and McClung are scheduled to be sentenced in February 2016.
B. The DOJ Charged or Resolved with Seven Individuals Independent of Any
Resolution with a Corporation
In the summer of 2015, the DOJ secured guilty pleas from three individuals in connection with a scheme
to influence corruptly the awarding of contracts with a Russian state-owned nuclear fuel company.170
Daren Condrey, Vadim Mikerin, and Boris Rubizhevsky, all U.S. residents, were charged with conspiring
to transmit funds from the United States to offshore shell bank accounts located in various European
countries, for the purpose of making corrupt payments to officials affiliated with Russia’s State Atomic
Energy Corporation.171
Only Condrey, a U.S. citizen who pleaded guilty on June 17, 2015, was charged with conspiracy to violate
the FCPA’s anti-bribery provision—Mikerin and Rubizhevsky both pleaded guilty to conspiracy to commit
money laundering. Mikerin was sentenced to four years in prison (plus forfeiture of $2.1 million in ill-
gotten gains) on December 15, 2015; Condrey and Rubizhevsky have yet to be sentenced.172
The most notable aspect of this case was its broad application of who qualifies as a “foreign official”
under the FCPA. The “foreign official” who was bribed was Mikerin—a Maryland resident who was the
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president of TENAM Corporation, a nuclear fuel company incorporated in Maryland with its headquarters
in Bethesda. The DOJ alleged that TENAM was a wholly owned subsidiary of the joint stock company
Techsnabexport (“TENEX”), which is based in Moscow and acts as Russia’s sole supplier and exporter of
uranium and uranium enrichment services. TENEX is in turn a subsidiary of Russia’s State Atomic Energy
Corporation, and thus the DOJ considered Mikerin’s employer to be an entity “indirectly owned and
controlled by, and” to have “performed functions of, the government of the Russian Federation.”173
Interestingly, it does not appear that any party challenged the DOJ’s stance as to Mikerin’s status as a
“foreign official.” Mikerin himself conceded his “foreign official” status—which did not expose him to FCPA
liability, since a foreign official cannot be charged under the FCPA for receiving a bribe.174 Condrey chose
not to contest the issue.175 This case appears to show the continuing—and potentially expanding—impact
of the broad definition of a government “instrumentality” as laid out in last year’s landmark decision in
United States v. Esquenazi (11th Cir. 2014).176
In January, a federal grand jury indicted Dmitrij Harder, the former owner and president of Chestnut
Consulting Group Inc. and Chestnut Consulting Group Co. (together, the “Chestnut Group”).177 The DOJ
charged Harder with one count of conspiracy to violate the FCPA and Travel Act, five counts of violating
the FCPA, and eight other counts related to money laundering and violating the Travel Act.178 Between
2007 and 2009, Harder allegedly paid more than $3.5 million in five installments to the sister of an official
at the European Bank for Reconstruction and Development (“EBRD”).179 The EBRD, a multilateral
development bank in London, provides financing for development projects in emerging markets.180 Harder
allegedly disguised the payments as consulting fees to the official’s sister for services she never
performed.181 In exchange, the EBRD official allegedly approved financing applications for approximately
$300 million from two of the Chestnut Group’s corporate clients, earning the Chestnut Group about $8
million in “success fees.”182 Harder pleaded not guilty to all counts, and the case is currently set for trial in
May 2016.183
In August, a former regional director of SAP International Inc. (“SAP”), Vicente Garcia, pleaded guilty to
conspiracy to violate the FCPA.184 Garcia also settled anti-bribery, books-and-records, and internal-
controls charges with the SEC for the same conduct.185 Garcia had bribed Panamanian government
officials through an intermediary to earn software license sales for SAP.186 To generate funds for the
bribes, Garcia caused SAP to sell its software to SAP’s Panamanian corporate partner at large
discounts.187 The corporate partner’s excessive earnings acted as a slush fund for the bribe payments.188
Garcia conspired to pay two Panamanian officials, one directly and the other through an agent, and
disguised $145,000 in completed bribes to a third official through sham contracts and false invoices.189 In
exchange, the Panamanian government awarded four contracts, between 2010 and 2013, to SAP’s local
partner for the sale of SAP software.190 The sale resulted in revenues of $3.7 million for SAP.191 Garcia
received kickbacks totaling nearly $86,000.192
In December, the DOJ charged Roberto Enrique Rincon-Fernandez and Abraham Jose Shiera-Bastidas
with conspiring to violate and violating the FCPA anti-bribery provisions.193 Rincon is the president of
Texas-based oil services company Tradequip Services & Marine, and Shiera is a Venezuelan
businessman living in the United States.194 Both men controlled a number of closely held U.S.
companies.195 The indictment alleged that between 2009 and 2014, Rincon and Shiera made nine
unlawful payments totaling $790,000 to officials at Venezuela’s state-owned energy company, Petróleos
de Venezuela S.A. (“PDVSA”), to secure energy contracts for their companies.196 These payments
allegedly originated from the bank accounts of Rincon, Rincon’s companies, and Shiera’s companies, and
they were routed to the bank accounts of PDVSA officials, their relatives, and other individuals designated
by PDVSA officials to receive the funds.197 The defendants also allegedly provided the officials with
recreational travel, meals, and entertainment.198 The court’s order of detention against Rincon stated that
investigators have traced $1 billion of illegal transactions from the conspiracy.199 The court also noted that
Rincon paid $2.5 million in bribes to one official alone, suggesting that the $790,000 of payments cited in
the indictment represents only a fraction of the total bribe amounts.200 The DOJ also charged Rincon and
Shiera with money laundering.201
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It could be said that the cases against Harder, Garcia, Rincon, and Shiera do not jump off the page. They
apparently do not involve particularly novel means of carrying out bribes or the award of enormous
contracts by FCPA standards. But that may be exactly the point. These somewhat “plain” cases may
signal the government’s increased determination to hold individuals accountable for wrongdoing, and the
absence of simultaneous resolutions with corporations based on the same conduct may reflect the DOJ’s
having de-prioritized corporate resolutions. However, substantially more cases will need to play out
before conclusions like this can be drawn with confidence.
C. The SEC Resolved with One Individual and Filed Civil Charges Against One Other
The SEC’s only actions against individuals last year were either in connection with a DOJ plea (Garcia,
summarized above in Section IV.B) or in connection with a resolution it reached with a company.
In the PBSJ case, described above in Section III.D, the Commission also charged Walid Hatoum in an
order instituting a settled administrative proceeding.202 Hatoum was a U.S. citizen who began as an
employee of PBSJ in the 1980s and later became a senior executive of PBSJ’s international subsidiary,
PBS&J-I.203 Hatoum allegedly offered bribes to a Qatari official who helped PBS&J-I obtain contracts for
construction and development projects. In particular, Hatoum promised and authorized PBS&J-I to pay
the Qatari official “agency fees” of nearly $1.4 million through a local partnering company he owned and
controlled, in exchange for influence that helped PBS&J-I secure a $35.6 million contract for a light rail
transit project in Qatar and a $25 million design contract on a project to develop a resort in Morocco.204
The scheme was discovered and stopped by PBSJ and its contractual partner, a Qatari real estate
investment firm—and some of the contractual work terminated—before the agency fees were actually
paid.205
The SEC alleged that Hatoum personally violated the anti-bribery provisions of the FCPA, and that he
caused violations of the accounting (both books-and-records and internal-controls) provisions on the part
of PBSJ.206 To settle these charges, without admitting or denying the factual findings in the administrative
order, Hatoum agreed to pay a civil penalty of $50,000.207
V. Key FCPA Legal Developments and Observations
A. The Hoskins Case Restricted the Government’s Ability to Charge Conspiracy and
Accomplice Liability in FCPA Crimes
In July 2013, Lawrence Hoskins, a former senior vice president for French power company Alstom, was
charged in the District of Connecticut with conspiracy and substantive FCPA and money laundering
charges.208 The DOJ alleged that Hoskins and others bribed Indonesian officials for their help in winning a
$118 million contract in Indonesia. Other executives of Alstom and its U.S.-based subsidiary—William
Pomponi, Frederic Pierucci, and David Rothschild—as well as the company’s consortium partner
Marubeni Corporation have also been charged with FCPA violations emerging from the same bribery
scheme, and all have pleaded guilty.209
Hoskins moved to dismiss the conspiracy count against him “on the basis that it charges a legally invalid
theory that he could be criminally liable for conspiracy to violate the [FCPA] even if the evidence does not
establish that he was subject to criminal liability as a principal, by being an ‘agent’ of a ‘domestic
concern.’”210 The basis of Hoskins’s argument was a change in the language of the operative indictment
against him: while the government originally charged Hoskins with “being a domestic concern and an
employee and agent of [Alstom Power U.S.],” the Third Superseding Indictment alleged only that he acted
“together with” a domestic concern to violate the FCPA.211 The government opposed Hoskins’s motion,
maintaining that it still intended to prove Hoskins acted as an agent of a domestic concern,212 but filed a
related motion in limine to preserve its right to argue that Hoskins might also be liable as an
accomplice.213 Together, those “two motions put before the Court the question of whether a non-resident
foreign national could be subject to criminal liability under the FCPA, even where he is not an agent of a
domestic concern and does not commit acts while physically present in the territory of the United States,
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under a theory of conspiracy or aiding and abetting a violation of the FCPA by a person who is within the
statute’s reach.”214
Looking at the text, structure, and legislative history of the FCPA, the court concluded that Congress did
not intend for non-resident foreign nationals to be subject to the FCPA unless they were agents of a
domestic concern or acted “while physically present” within the territory of the United States. Accordingly,
the judge granted Hoskins’s motion in part and denied the government’s motion in limine, prohibiting the
government from arguing that Hoskins could be liable for conspiracy absent proof that he was an agent of
a domestic concern; the judge did not, however, dismiss the conspiracy count altogether, since the
government might proceed under the theory that Hoskins was such an agent.215 The Hoskins decision is
consistent with a decision made by Judge Richard Leon as part of the 2011 Africa Sting case, in which he
dismissed charges against an alleged co-conspirator whose only connection to the United States was that
he sent a DHL package containing a purchase agreement relevant to the corrupt scheme.216 Though the
decision was rendered without written reasoning, Judge Leon made clear at oral argument that he was
skeptical that a sufficient connection existed to the United States.217 The DOJ filed a motion for
reconsideration in Hoskins in August 2015 with its own views on the legislative history of the FCPA.218
Trial has been set for April 18, 2016.219
B. The DOJ Dropped Its Appeal of an Adverse Extraterritoriality Ruling in the
Sidorenko Case
In a case raising somewhat similar issues to Hoskins, on April 21, 2015, the U.S. District Court for the
Northern District of California dismissed a criminal case that, although not brought under the FCPA, could
significantly impact the viability of future U.S. bribery prosecutions against foreign actors with a tenuous
U.S. nexus. In United States v. Sidorenko, 102 F. Supp. 3d 1124 (N.D. Cal. 2015), the U.S. Attorney for
Northern California indicted three individuals—two Ukrainian citizens and a Venezuelan national residing
in Canada—and charged them with conspiracy, honest services wire fraud, and soliciting and giving
bribes involving a federal program, all in connection with an alleged scheme to defraud the Montreal-
based International Civil Aviation Organization (“ICAO,” a specialized agency of the United Nations).220
The government alleged that businessmen Yuri Sidorenko and Alexander Vassiliev paid bribes to
Mauricio Siciliano, an employee of ICAO, in exchange for official actions to benefit their personal
“consortium,” a conglomerate of Ukrainian companies.221
But the indictment did not include any allegations that any of the three defendants were U.S. citizens or
that they lived, worked, or undertook any of the alleged criminal conduct inside the United States. U.S.
District Judge Charles Breyer dismissed the indictment after concluding that neither the bribery statute
(18 U.S.C. § 666) nor the fraud statute (18 U.S.C. § 1343) at issue applied extraterritorially, and that
criminal prosecution in the face of such minimal domestic nexus would offend due process.222 Though the
government argued that it had both a security and a financial interest in the ICAO, which receives federal
funds, Judge Breyer said at oral argument that this was the most “misguided prosecution” he had seen in
fifty years of criminal practice and suggested that the dismissal should be appealed immediately so that
the Circuit Court could weigh in.223 The government at first did appeal the ruling, but then reversed course
and dropped the appeal, which was dismissed on July 23, 2015.224
As the employee of an international organization under the auspices of the UN, Siciliano would likely have
qualified as a “foreign official” for purposes of the FCPA. The DOJ may have simply determined that it
would be easier to establish statutory jurisdiction over these three individuals under the wire fraud and
bribery statutes than under the FCPA. But Judge Breyer’s ruling is an important reminder that whether or
not the government can establish statutory jurisdiction over foreign individuals (under the FCPA or any
other law), it still must show that those individuals have “minimum contacts” with the United States, or
else criminal prosecution may be an unconstitutional violation of due process.225
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C. A Setback for the DOJ in the Sigelman Trial Again Raised Questions Concerning
the DOJ’s Trial Record in FCPA Cases
In May 2014, a federal grand jury indicted Joseph Sigelman, a former co-chief executive officer of
PetroTiger Ltd., on six counts including FCPA charges for allegedly bribing a Colombian official in order to
secure approval from Ecopetrol, Colombia’s state-controlled oil company, for a $39.6 million contract.226
Sigelman was alleged to have made at least four unlawful payments totaling approximately $333,500 to
the Colombian official.227 Sigelman allegedly first attempted to make the payments indirectly by providing
them to the official’s wife under a sham consulting services arrangement, but later made the payments
directly to the official.228
Sigelman’s trial began on June 1, 2015.229 The key witness for the government at Sigelman’s trial was to
be former PetroTiger general counsel Gregory Weisman, who had previously pleaded guilty to violating
the FCPA for misconduct similar to that alleged against Sigelman.230 As part of his cooperation with the
DOJ—which took place while Weisman was still serving as general counsel for another company run by
Sigelman231—Weisman recorded private conversations with Sigelman.232 Ambiguities in Sigelman’s
admissions, however, apparently meant the government’s evidence was less powerful at trial than it had
hoped.233
In addition, Weisman’s testimony at trial caused the government’s case against Sigelman to end
abruptly.234 During cross-examination, Weisman admitted to having given inaccurate testimony about the
terms of his cooperation agreement only a couple of days earlier.235 Shortly thereafter, the government
offered and Sigelman accepted a plea deal under which Sigelman pleaded guilty to one count of
conspiracy to violate the FCPA with a recommended prison sentence of no more than one year and one
day.236 The judge, however, sentenced Sigelman to three years of probation237 and ordered him to pay
$239,000 in restitution to PetroTiger and a $100,000 fine.238 While the DOJ’s press release on the case
spun the guilty plea as a victory,239 the result was viewed as a disappointment to the DOJ given the
initially expansive charges against Sigelman and the lack of jail time imposed.240
The unraveling of the Sigelman case at trial is just the latest episode in a string of unsuccessful FCPA
trials for the government in recent years. Since September 2011, the DOJ has gone to trial four times on
substantive FCPA charges and in each of those cases, the result has either been a dismissal, an
acquittal, or the limited “victory” obtained in Sigelman.241 This particular result, like the “Africa Sting”
cases from 2011 and 2012,242 raises questions about the government’s use of recordings and sting
tactics in FCPA cases. On the other hand, it is always dangerous to make predictions based on such a
limited number of cases. Weisman may simply have been a weak cooperator who testified unexpectedly
poorly. Perhaps the strongest conclusion that can be drawn is that the two FCPA trials currently
scheduled for this spring—Hoskins (scheduled for April, although subject to postponement based on the
DOJ’s reconsideration motion) and Harder (scheduled for May)—will be closely watched. Continued
setbacks at trial could undercut the government’s renewed effort to hold individuals accountable for FCPA
violations.
In any event, the government appears undeterred with respect to the use of monitoring in FCPA
investigations. Outgoing FBI Public Corruption Chief Jeff Sallet stated at the annual ACI FCPA
conference in November that there are “Title III’s and undercover operations targeting FCPA [violations]
around the country right now.”243
On the same day that Sigelman pleaded guilty, the DOJ publicly announced its decision to decline
prosecution of PetroTiger for the conduct of Sigelman and his two co-conspirators.244 The DOJ stated that
it based its decision not to prosecute on “PetroTiger’s voluntary disclosure, cooperation, and remediation,
among other factors.”245 This was only the second time that the DOJ has publicly announced its
declination of an FCPA case.246 In 2012, the DOJ announced that it had declined to prosecute Morgan
Stanley for the conduct of its former managing director in evading the company’s internal controls
because of Morgan Stanley’s robust compliance program.247 At the same annual ACI FCPA conference in
November, Caldwell commented that nothing more would be gained by prosecuting PetroTiger because
of the company’s exemplary handling of the case.248 Caldwell did not mention whether PetroTiger’s
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compliance program played any role in DOJ’s decision to publicly announce its declination, as it had in
the Morgan Stanley case.249 Given that numerous companies voluntarily disclose misconduct and
cooperate in government investigations, it is difficult to tell why PetroTiger seems to have received
different treatment from many other companies, or whether PetroTiger may be a predictor of the DOJ’s
future treatment of such companies.
VI. Collateral Legal Developments
A. Judicial Wariness Persists Regarding DPAs
In 2015, federal judges continued to assert their right to scrutinize DPAs. As DPAs are filed in court, they
are subject to judicial oversight. In the past, judges tended to limit their role in the DPA approval process
to excluding time under the Speedy Trial Act, holding the case in abeyance for the term of the agreement,
and dismissing the charges following the defendant’s satisfaction of its obligations under the agreement.
In recent years, however, judges have increasingly sought to take a more active role in determining
whether to approve DPAs. As discussed below, two decisions in 2015 sought to define further the
appropriate degree of judicial scrutiny in the context of DPAs.
1. Judge Leon rejects Fokker Services DPA in February
On February 5, 2015, Judge Leon of the D.C. District Court rejected a proposed DPA with Fokker
Services B.V. in connection with an alleged scheme to violate U.S. export laws.250 He stated that “the
integrity of judicial proceedings would be compromised by giving the Court’s stamp of approval to either
overly-lenient prosecutorial action, or overly-zealous prosecutorial conduct.”251 Judge Leon concluded
that the DPA was “grossly disproportionate to the gravity of Fokker Services’ conduct”—which had
allegedly involved more than 1,110 transactions occurring in Iran, Burma, and Sudan over the span of five
years—and pointed to the fact that the DPA did not charge any individuals, did not call for a monitor, and
did not impose any reporting requirements.252 He therefore refused to approve the agreement.253 He did,
however, express willingness to review a “modified” DPA “should the parties agree to different terms and
present such an agreement for my approval.”254
This decision, which is currently pending appeal, suggests that the negotiation of DPAs may now need to
include consideration by all parties involved as to whether the agreement’s terms will prove acceptable to
the court. Moreover, the now very real possibility that a court might reject a DPA may also factor into a
company’s decision as to whether to disclose misconduct to the government in the first place, and into the
government’s decision as to whether to proceed with a DPA, rather than with a plea agreement or with an
NPA, which does not require court approval.
2. Judge Sullivan approves two DPAs in October (but criticizes the DOJ’s use of
them)
Judge Emmet Sullivan of the D.C. District Court also explored a court’s role in determining whether to
approve DPAs in an opinion on October 21, 2015, in which he ultimately approved two separate DPAs
with Saena Tech Corp. and Intelligent Decisions, Inc. involving alleged domestic (non-FCPA) bribery in
connection with certain government contracts.255 Similar to Judge Leon, Judge Sullivan concluded that a
court’s supervisory powers allow it to reject a DPA that is “especially unfair or lenient,” where approval of
the agreement would “implicate the integrity of the Court.”256 His concern was that, without such authority,
courts could “becom[e] accomplices in illegal or untoward actions.”257
Judge Sullivan also explored whether DPAs in the corporate context are inconsistent with the Speedy
Trial Act. He stated that, in allowing for deferral of prosecutions under the Speedy Trial Act, Congress
intended to encourage rehabilitation of individuals charged with certain non-violent criminal offenses while
avoiding the collateral consequences associated with a criminal conviction.258 This intent contrasts, in
Judge Sullivan’s view, with the government’s current practice of frequently using DPAs as a means of
permitting corporations to avoid conviction by paying a fine and implementing compliance measures.259
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Although Judge Sullivan did not find that practice to be improper per se, he called upon the DOJ to
“consider expanding the use of [DPAs] and other similar tools to use in appropriate circumstances when
an individual who might not be a banker or business owner nonetheless shows all of the hallmarks of
significant rehabilitation potential.”260 Judge Sullivan thus joined the growing ranks of judges who push
back against a passive role in the DPA approval process.
B. The SEC Announced Its First “Pre-taliation” Case
On April 1, 2015, the SEC announced its first enforcement action against a company for stifling potential
whistleblowers.261 Without admitting or denying the findings in a cease-and-desist order, Houston-based
technology and engineering firm KBR Inc. agreed to pay a $130,000 penalty to settle allegations that it
required witnesses in certain internal investigations to sign confidentiality agreements prohibiting them
from “discussing any particulars regarding th[eir] interview and the subject matter discussed during the
interview, without the prior authorization of [KBR’s] Law Department,” and warning them they could face
discipline, including job termination, for failing to comply with the prohibition.262
Although the SEC acknowledged that it was unaware of any instance in which the confidentiality
agreement or KBR’s actions had, in fact, interfered with whistleblowing activity, the agency found that the
language in KBR’s agreement violated Rule 21F-17 (enacted under the Dodd-Frank Wall Street Reform
and Consumer Protection Act), which prohibits companies from taking any action to impede
whistleblowers from reporting possible securities law violations to the SEC.263 According to the SEC, KBR
has since amended its confidentially statement by adding language expressly clarifying that employees
may report possible violations to the SEC and other federal agencies without prior KBR approval.264
The KBR action is the most recent indication that the SEC takes a broad view of the Dodd-Frank
whistleblower protections. It is also the first action in what is reportedly a wider investigation into
companies that may have improperly silenced whistleblowers through employment-related documents.265
According to The Wall Street Journal, the SEC has sent letters to several companies requesting the
production of nondisclosure agreements, employment contracts, and other documents.266 In the SEC
press release regarding the KBR case, Sean McKessy, Chief of the SEC’s Office of the Whistleblower,
warned that “[o]ther employers should … review and amend existing and historical agreements that in
word or effect stop their employees from reporting potential violations to the SEC,” and Ceresney stated
that the SEC “will vigorously enforce” Rule 21F-17.267 Thus, more “pre-taliation” cases may be yet to
come.
C. The SEC Continued to Bring Cases Administratively
Administrative cease-and-desist proceedings were the primary channel for resolutions of FCPA
enforcement actions by the SEC in 2015. All but one of the SEC’s nine corporate FCPA resolutions in
2015 were brought through administrative proceedings.
Given the SEC’s success before administrative law judges (“ALJs”) and the fact that those judges are
employees of the Commission, there have been questions about whether the administrative cases are
biased in favor of the Commission. In June, one of the five SEC administrative law judges declined the
SEC’s request to submit an affidavit in an appeal of an administrative decision stating that he did not feel
pressure to rule for the Commission. According to news reports, the judge had found that all of the 28
defendants who had come before him in contested cases were liable on at least some of the SEC’s
charges.268 And in November, it was reported that SEC Chief Judge Brenda Murray explained her
decision in a 2014 case not to dismiss charges before holding a hearing by saying, “For me to say I am
wiping it out, it looks like I am saying to these presidential appointee commissioners, ‘I am reversing you.’
And they don’t like that.”269
There were several legal challenges in 2015 to the SEC’s use of administrative proceedings. These
challenges have focused on whether the ALJs’ exercise of authority violates the Appointments Clause of
the Constitution, which states that “inferior officers” may only exercise “significant authority” if they are
appointed “by the President, courts of law, or department heads.” Two federal courts of appeals have
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held that district courts do not have jurisdiction to hear challenges to the SEC’s use of the administrative
forum.270 However, in August 2015, the U.S. District Court for the Southern District of New York found
that the court had jurisdiction and granted a preliminary injunction against the SEC based on a finding
that the appointment of the ALJ was likely unconstitutional under the Appointments Clause.271
The SEC has recently pulled back somewhat on filing contested cases in administrative proceedings. The
Wall Street Journal found that in fiscal 2014, the SEC filed 43% of its cases in the administrative tribunal;
however, in fiscal 2015, the SEC filed only 28% of contested cases in the administrative tribunal.272 It is
worth noting that this issue is primarily significant with respect to contested matters. It is often beneficial
for both the SEC and the respondent to settle a case in an administrative proceeding rather than in district
court.
D. The Kellogg Brown & Root II Decision Generated Rulings on Corporate Privilege
Issues That Were Generally Favorable to Holders of the Privilege
Attorney-client privilege in corporate investigations was tested in In re Kellogg Brown & Root, Inc. (“KBR
II”) when the U.S. Court of Appeals for the D.C. Circuit upheld a company’s assertion of privilege over
materials relating to an internal investigation for a second time in the same case.273 Last year, the D.C.
Circuit had granted Kellogg Brown & Root, Inc. (“KBR”) a writ of mandamus preventing the production of
privileged documents and sent the case back to the district court.274 On remand, the district court again
ordered production of the same documents based on implied waiver of the privilege. Once again, the
company sought to prevent production with a writ of mandamus, which the D.C. Circuit again granted.
The court’s latest opinion has three major holdings. First, it rejected the district court’s conclusion that
documents related to the company’s internal investigation must be produced under Federal Rule of
Evidence 612 because the company’s Rule 30(b)(6) witness had “reviewed the documents in preparation
for his deposition” on the topic of the internal investigation.275 Second, it held that KBR did not disclose
the results of its investigation, and therefore implicitly waive the privilege, by stating in a brief that the
company (1) generally reported findings of wrongdoing to the government, (2) investigated the plaintiff’s
allegations of kickbacks, but (3) made no report of misconduct to the government.276 And third, it held that
the district court incorrectly compelled production of documents relating to the company’s internal
investigation that went beyond “fact work product” and implicated privileged materials.277KBR II ultimately
upheld the company’s privilege but acknowledged that the case presented difficult questions.278 Overall,
the legal effect of these rulings is helpful to companies trying to protect their privilege. The substantial
legal fees and more than a year of additional court proceedings incurred by KBR should also warn
litigants not to venture too close to the line.
VII. Key International Legal Developments
A. United Kingdom
During 2015, scrutiny of the lack of convictions secured against corporate entities under section 7 of the
UK Bribery Act 2010 (“the Bribery Act”), the strict liability corporate offense of failing to prevent bribery,
continued to grow. In November 2015, the Serious Fraud Office (“SFO”) secured its first DPA with a
company that admitted acting contrary to section 7 of the Bribery Act and, shortly after this was
announced, the SFO announced it would receive its first guilty plea in relation to an offense contrary to
section 7.
1. Significant Cases
On 7 September 2015, SFO Director David Green CB QC made a speech to the 33rd Cambridge
Economic Crime Symposium.279 He described “significant results” for the prosecutor and cited the case of
Sustainable AgroEnergy as the first SFO convictions under the Bribery Act and the case of Smith &
Ouzman as the first conviction of a company for bribery of a foreign public official. According to public
reports, investigations by the SFO are ongoing into Rolls-Royce, GlaxoSmithKline, ENRC, and GPT.
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Green also discussed the investigation into Soma Oil & Gas, which began in July 2015 and concerns
allegations of corruption in Somalia.280 Green noted that 32 defendants, individual and corporate, are
charged and awaiting trial in eight cases.
In December 2014, Gary West, James Whale, and Stuart Stone were convicted of various offenses
relating to a conspiracy to commit fraud by false representation and Bribery Act offenses.281 This case,
which centered on West’s company, Sustainable AgroEnergy, was the first conviction by the SFO under
the Bribery Act.282 The fraud involved misleading investors in connection with the selling and promotion of
self-invested pension plans (“SIPPs”) relating to “green biofuel” plantations in Cambodia. The bribery
offenses were a minor element of the conspiracy and involved the giving and receipt of bribes in respect
of the creation of false invoices by West and Stone, allowing Stone to obtain unearned commissions.283
The three men were sentenced to prison terms ranging from six to thirteen years.284
The second case mentioned in Green’s speech was Smith & Ouzman, which was a printing firm that was
convicted, along with two employees, of corrupt payments totaling £395,074 made to Foreign Public
Officials (“FPOs”) in Kenya and Mauritania.285 This case is significant as it represents the first conviction
by the SFO of a company for illegal payments made to an FPO. These convictions were secured under
section 1(1) of the Prevention of Corruption Act 1906, not the Bribery Act, because all the relevant
conduct took place prior to the effective date of the Bribery Act. Nonetheless, the content of the
respective sections of the two acts is similar, meaning that these convictions could equally have been
secured under the new legislation.
In April 2015, further charges were brought against Alstom Network UK and an Alstom employee in
phase three of the SFO’s ongoing investigation into suspected corruption offenses related to the supply of
trains to the Budapest Metro in 2006 and 2007.286
In May 2015, British National Graham Marchment pleaded guilty to a conspiracy to corrupt in relation to
the award of contracts in a series of high-value infrastructure projects.287 The former Philippines resident
was handed down three concurrent 2.5-year sentences for his part in the conspiracy, which involved
collusion to obtain payments by “deliberately leak[ing]” confidential information in relation to oil and gas
engineering projects in Egypt, Russia, and Singapore “in exchange for payments disguised as
commission.”
2. Corporate Bribery Prosecutions
In November 2015, the SFO secured a DPA against ICBC Standard Bank for offenses committed
contrary to section 7 of the Bribery Act. This case is discussed in more depth below.
At the start of December 2015, the SFO announced that construction and infrastructure service company
Sweett Group plc had admitted an offense under section 7 of the Bribery Act following an internal
investigation into two contracts in the Middle East. The SFO confirmed formal charges against Sweett
Group on December 9, 2015. The case will come before the courts in 2016.
3. Deferred Prosecution Agreements
In November 2015, the SFO announced its first DPA, with ICBC Standard Bank plc, formerly known as
Standard Bank plc, and the DPA received judicial approval on November 30, 2015.288 Standard Bank
agreed to pay compensation of $6 million and over $1 million in interest; to disgorge a transaction profit of
$8.4 million; and to pay a financial penalty of $16.8 million. Significantly, the DPA was negotiated after the
company admitted conduct contrary to section 7 of the Bribery Act.
In the Standard Bank case, the Tanzanian government sought to raise funds through a sovereign note
private placement. Standard Bank plc and Stanbic Bank Tanzania Ltd, a subsidiary of the Standard Bank
Group, sought to share the government note placement. Efforts stalled until Stanbic entered into a
contract with a Tanzanian company, EGMA, for consultancy services, and subsequently transferred $6
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million to EGMA. There was no evidence that any consultancy services were provided in exchange for the
sum paid and the vast majority of the sum was swiftly withdrawn in cash. Two of the three directors of
EGMA were politically connected individuals. The court determined that this payment was a bribe
because the money was paid with the intention that the recipients perform their roles improperly in
appointing Standard Bank and Stanbic. Standard Bank, which did not have adequate measures in place
to guard against corruption risks, was found to have failed to prevent the bribery by relying on Stanbic to
conduct due diligence and failing to make any inquiries of its own.
Although the Standard Bank DPA is a very public success for the SFO, pressure remains on the SFO to
conclude a second DPA, as has been publicly announced. According to Green, one of the main obstacles
to the successful negotiation of DPAs has been that corporate entities may have concluded that
prosecution of a company under English law is so difficult that it would not be in their interests to agree to
a DPA.289 To counter this, Green has advocated a move away from the identification (or “directing mind”)
principle of corporate criminal liability, which requires guilty knowledge to be proven against a person at
or close to board level to secure a conviction, towards a looser liability standard. However, in September
2015, the UK government announced that it was abandoning plans to introduce a general corporate
offense of failure to prevent economic crime, which would essentially represent an expansion of section 7
liability beyond bribery and corruption.290
It remains to be seen what the effect of the first successfully negotiated DPA will be on the prospects of
future agreements, but it seems unlikely to open the floodgates on companies proactively reporting
wrongdoing within their organizations to the SFO. While there are reputational benefits for a company in
transparency and cooperation, a high threshold for establishing corporate criminal liability will continue to
influence companies’ decisions about whether or not to come forward.
B. Germany
1. Enforcement
In 2015, U.S. and Swiss investigations into alleged corruption within FIFA also triggered law enforcement
actions in Germany. The public prosecutor’s office in Frankfurt am Main is investigating the award of the
2006 Football World Championship to the German Football Association, Deutscher Fussballbund
(“DFB”).291 DFB is the world’s largest national football association. According to media reports, DFB
representatives tapped into a fund worth approximately €6.7 million to influence FIFA officials to grant the
hosting of the 2006 championship to DFB.292 The investigation focuses on tax issues, as bribery offenses,
if applicable, would be time-barred.
Large German multinationals were accused of being involved in bribery schemes overseas in 2015. A
subsidiary of German construction company Bilfinger is alleged to have paid bribes to Brazilian
government officials in exchange for contracts to build traffic control centers in connection with the 2014
World Cup in Brazil.293 Bilfinger, which is under a DOJ monitorship following its settlement of FCPA
charges related to bribery in Nigeria, became the first known company to voluntarily disclose potential
misconduct under Brazil’s new anti-corruption laws, as described below in our summary of Brazilian
developments.294
Greek investigators also pursued German companies. In the defense sector, companies like Rheinmetall
and Atlas Elektronik are subject to investigations by law enforcement agencies in crisis-ridden Greece.295
A spokesman of the Greek secretary of defense claimed that Greece would be entitled to compensation
of more than US$100 million. More criminal proceedings in Greece were opened against former
managers and other representatives of German multinational Siemens.296 Siemens, which came into
public focus in connection with worldwide bribery allegations in 2008, is now accused of having paid
bribes of €70 million to a Greek telecommunications company in the late 1990s.297 In a similar
proceeding, Greek authorities accused managers of the German carmaker Daimler of having bribed
Greek government officials in order to obtain contracts for military vehicles worth more than €100
million.298
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2. Legislation
At the end of 2015, new German legislation came into force that enhances criminal liability for the corrupt
conduct of individuals. First, the scope of Sections 331 and 333 of the German Criminal Code were
widened to include accepting or granting something of value for the mere performance of official duties
by, or to, a government official of the European Union. Until the amendment, corrupt payments to EU
officials were not subject to criminal prosecution in Germany unless it could be proven that the payment
had been made in order to induce an official to act in violation of an official’s duties. Second, the scope of
the prohibition against commercial bribery in the German Criminal Code was extended. It is now a
criminal act to make a corrupt payment to an employee to cause the employee to violate his or her duties
vis-à-vis the employer in a situation where the company is ordering goods or services. Before the
amendment, commercial bribery was treated as a criminal act only insofar as the payment was made
while a competitor was offering similar goods or services and the payment was made to seek preferential
treatment. Finally, the new legislation incorporates into the German Criminal Code provisions that extend
the scope of German criminal law to cover foreign bribery. While these provisions are not entirely new,
they used to be found in ancillary statutes. Their new place in the German Criminal Code itself illustrates
the importance the German legislature attributes to combatting international bribery.
Legislation under consideration would significantly tighten individual criminal liability in the health sector in
2016. The amendments to Section 299a would make it a criminal act for a doctor, or another member of a
healthcare profession, to request, accept the promise of, or accept an advantage for himself or a third
party as a quid pro quo for purchasing, prescribing, administering or dispensing medical products or for
referring patients or test material, provided the doctor thereby unduly favors someone else in a
competitive situation or otherwise breaches his professional duties. Likewise, an employee of, for
example, a pharmaceutical company, could be prosecuted criminally for offering, promising or giving an
advantage to a doctor or member of a healthcare profession under such circumstances. This legislation is
designed to close a widely criticized loophole in German law that was created by a prior judicial decision;
the bill has not yet obtained final parliamentary approval.
Draft legislation in North Rhine Westphalia, the largest of Germany’s sixteen states, to introduce
corporate criminal liability remains widely discussed among important stakeholders, and key government
leaders have not taken final positions on the bill yet. Most observers do not expect that corporate criminal
liability will be introduced into German law during the current legislative period.
Meanwhile, as we have described in previous updates, corporations lacking an adequate compliance
organization will remain punishable in Germany under the Administrative Offenses Act and be subject to
ancillary sanctions, such as fines and disgorgement orders.299
C. European Union
In the EU, 2015 began with two reports by the European Commission on progress in Bulgaria300 and
Romania301 under the Co-Operation and Verification Mechanism (“CVM”). The CVM was set up at the
accession of Bulgaria and Romania to the European Union in 2007 to address and monitor judicial
reforms and the fight against corruption by Bulgarian and Romanian authorities. The CVM report for
Bulgaria indicates that corruption remains a serious issue in Bulgaria due to a lack of effective
enforcement authorities and an outdated Criminal Code. In contrast, Romania has seen a wide range of
high-level cases being prosecuted by a special enforcement unit, and a former Romanian Prime Minister,
former Ministers, Members of Parliament, mayors and magistrates have been charged or convicted for
corruption. However, political resistance to investigations and legal system reforms, particularly with
regard to asset recovery, remain major issues in Romania.
In September 2015, the European Economic and Social Committee (“EESC”) issued an Opinion Paper on
“Fighting corruption in the EU: meeting business and civil society concerns.”302 The EESC is a
consultative body of the European Union that provides representatives of Europe’s social interest groups
with a formal platform to express their views on EU issues to the European Commission and European
Parliament. The EESC Opinion Paper made a number of recommendations to EU institutions, among
– 26 –

them the recommendation to develop a “coherent and comprehensive five-year anti-corruption strategy
and an accompanying action plan” endorsed by all EU institutions. According to the EESC, the EU should
promote the adoption and implementation of compliance, anti-bribery codes and standards in individual
companies; should encourage companies to ensure that anti-corruption standards are upheld throughout
their supply chain; and should ensure that compliance measures are also adopted by small and medium-
sized enterprises.
In last year’s review, we reported on the EU Commission’s first Anti-Corruption Report. An update of that
report is expected in 2016.
D. Brazil
As reported last year, Brazil enacted a new anti-corruption law, the Clean Company Act, in August 2013
that came into force on January 29, 2014.303 The law imposes civil and administrative liability on
companies, both domestic and foreign, for acts of corruption and bid rigging by their employees or
agents. The Brazilian Criminal Code also provides for criminal liability for individuals who engage in
bribery of domestic and foreign public officials.
In March 2015, the government issued implementing regulations for the Clean Company Act that clarified
five areas in particular: (1) process for administrative enforcement of the law; (2) penalty calculation; (3)
leniency agreements; (4) compliance programs; and (5) suspended and sanctioned companies lists.304 Of
particular note, the regulations indicate that companies with robust compliance programs may be eligible
for reductions in monetary fines of up to 4% of the company’s gross annual revenues in the event it is
implicated in corruption-related offenses.305 The regulations also outline guidelines for evaluating the
effectiveness of a compliance program (which the regulations call “integrity programs”), including factors
such as tone at the top, ongoing training and risk assessment, a designated compliance officer, accurate
accounting records, and effective due diligence.306 Finally, the regulations grant the Federal Comptroller’s
Office (the “CGU”) jurisdiction to enter into leniency agreements in federal investigations under the Clean
Company Act.307
Shortly thereafter, the CGU released additional implementing regulations and a guide for companies
seeking to comply with the Clean Company Act and develop strong compliance programs.308 The
regulations set forth specific documentation that should be maintained as part of a company’s compliance
program. In the event of an investigation, a company will have 30 days to submit evidence and
documentation in its defense; thus, it is to the company’s benefit to have the relevant documentation
easily accessible.309
While many questions remain about how these regulations will be applied in practice, they appear to
represent a critical step forward in operationalizing the Clean Company Act and equipping regulators and
companies with key information about how to evaluate a company’s compliance efforts.
In a significant development in Brazilian enforcement efforts, the German firm Bilfinger SE became the
first international company to disclose misconduct voluntarily in an effort to seek leniency under the Clean
Company Act, as noted above.310 In announcing the disclosure, the CGU noted that while Bilfinger would
not be exempt from fines as a result of seeking leniency, it could be guaranteed the right to keep
operating in Brazil. Several other companies tied to the ongoing corruption investigations at Brazil’s state-
owned oil company Petrobras also are pursuing leniency agreements. Of those companies, Netherlands-
based SBM Offshore has entered into a framework for discussions with the CGU to resolve corruption
allegations arising from the Petrobras investigation, and may be the first company to reach a leniency
agreement in that inquiry.311
The possibility of leniency agreements remains controversial in Brazil, with prosecutors objecting on the
grounds that such agreements may hinder ongoing criminal investigations by allowing corporations to
resolve allegations without providing any new evidence, and others viewing them as yet another loophole
for well-connected parties to avoid meaningful penalties. But government officials have stated that they
view leniency agreements as a means of allowing recovery to begin within the hard-hit oil and gas sector
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of the economy, and note that it will simply take time to adjust to the new methods of resolving corruption-
related allegations.312 The Brazilian justice system is still wrestling with how and when it will allow
corporations to obtain leniency agreements, and much remains to be seen about how these agreements
will be implemented in practice.
Arrests and indictments related to corruption at Petrobras continued with renewed intensity throughout
2015, and are expected to continue apace in 2016. Petrobras officials now estimate that the total value of
all bribes given or received in connection with work performed for the company may have risen as high as
$3 billion, evidencing an institutionalized level of corruption unprecedented in Brazil’s history.313 In August
2015, speaker of the house Eduardo Cunha became the first sitting politician to be charged in the scandal
in connection with allegations that he accepted a $5 million bribe related to contracts for drill ships.314
Prosecutors also charged former president Fernando Collor de Mello, who resigned the presidency in
1992 due to unrelated corruption allegations and later became a senator.315 Over 30 additional sitting
politicians are also said to be under investigation for bribery allegations, as well as a number of former
politicians.316 In addition to politicians, prosecutors arrested Marcelo Odebrecht, the head of Latin
America’s largest engineering and construction firm, Otavio Marques Azevedo, head of Brazil’s second-
largest construction firm,317 billionaire investment banker Andre Esteves, and numerous others.318 Rolls-
Royce also has confirmed that it is cooperating with a bribery investigation in Brazil, and was named in
court filings as allegedly paying bribes to obtain a contract to supply equipment for Petrobras oil rigs.319
President Dilma Rousseff, who previously served as the head of Petrobras during some of the time period
under investigation, thus far has not been implicated in the investigation. However, lawmakers initiated
impeachment proceedings in relation to government accounting issues, and she has been the target of
protests across the country for failing to eradicate corruption in the government.320
E. India
In recent years, India has expanded efforts to combat corruption in both the public and private sectors.
The Lokpal and Lokayuktas Act, which created an independent ombudsman’s office tasked with
investigating and prosecuting cases of misconduct by politicians and government agents, took effect in
January 2014.321 Parliament is currently considering amendments to the law that would consolidate anti-
corruption investigations and enforcement authority into a single, centralized agency.322 The
Whistleblowers’ Protection Act, which also took effect in 2014, aims to provide “adequate protection to
persons reporting corruption or wilful misuse of power or wilful misuse of discretion which causes
demonstrable loss to the Government or commission of a criminal offense by a public servant.”323
Since assuming office in May 2014, Prime Minister Narendra Modi has made anti-corruption a top priority
of his administration.324 India’s recent anti-corruption legislation aims to effectively implement the United
Nations Convention Against Corruption, which India ratified in May 2011, and to bring domestic law in line
with international practices.325
In April 2015, the Union Cabinet approved amendments to the Prevention of Corruption Act of 1988 to
include tougher prison terms for individuals convicted under the law; liability for commercial entities that
induce public servants; an expansion of the types of corruption covered under the law; and a “speedy
trial” provision aimed at reducing the trial period for cases brought under the law from an average of eight
years to two years.326 These amendments are currently pending before one house of Parliament.327
In July 2015, the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015
(popularly known as the “Black Money Act”) took effect. The law aims to curb undisclosed foreign assets
and income by imposing a tax and penalty on undeclared bank accounts and assets abroad.328
While India has long criminalized the bribery of Indian officials, the country does not currently criminalize
foreign bribery.329 However, the Prevention of Bribery of Foreign Public Officials and Officials of Public
International Organizations Bill, initially introduced in 2011, was reintroduced in August 2015.330 The
proposed bill provides for prison terms and fines for individuals who offer bribes to foreign public officials
or to officials of public international organizations, and also penalizes foreign officials who accept
bribes.331
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Anti-corruption enforcement efforts are continuing. In July 2015, the Supreme Court of India transferred
the ongoing “Vyapam” case involving widespread corruption in a state government examination board to
the Central Bureau of Investigation.332 To date, more than 2,000 individuals have been charged in the
case.333 In 2012, an Indian politician brought suit against Sonia Gandhi, President of the Indian National
Congress Party, and her son, Rahul Gandhi, for allegedly misappropriating $300 million through the
purchase of a newspaper non-profit company.334 The graft case is ongoing, with court appearances and
hearings scheduled for 2016.335
F. China
1. Enforcement
In April 2015, Jiang Jiemin, former chairman of China National Petroleum Corporation (“CNPC”), went on
trial on charges of bribery, abuse of power of a state-owned enterprise, and owning properties that he
could not have afforded from his legitimate earnings.336
Between 2004 and 2013, Jiang was the deputy general manager, general manager and chairman of
CNPC, and concurrently served as chairman and CEO of PetroChina Company Limited. In 2013, Jiang
was promoted to the head of the state-owned Assets Supervision and Administration Commission.337 The
court found that Jiang took advantage of his office to benefit others with projects and job promotions and
accepted bribes valued at RMB14 million, paid either to himself or his wife. As of August 2013, Jiang’s
personal and family property and expenditures had apparently surpassed his and his family’s legal
income and Jiang could not identify the sources for the surplus. The court further found that Jiang abused
his power to gain huge benefits for others by obtaining oil and gas field exploration rights and bidding for
gas turbine power generation projects, thereby harming state interests.338 Jian pleaded guilty to all
charges and on October 12, 2015 was sentenced to 16 years in prison.339
In July 2015, a Chinese lawyer lodged a complaint with China’s Supreme People’s Procuratorate, urging
the top prosecutor to launch an anti-graft investigation into Mead Johnson in the wake of its $12.03 million
settlement with the SEC.340 The SEC alleged that Mead Johnson made over $2 million in improper
payments to officers and doctors in public hospitals in China. 341 Mead Johnson settled with the SEC on a
neither admit nor deny basis. However, the Chinese complaint argues that acceptance by Mead Johnson
of the penalties imposed by the SEC is proof that Mead Johnson has admitted conduct that constitutes a
bribery offense under Chinese law. It is unclear at this point how Chinese authorities will handle this
complaint; if Chinese authorities pursue the complaint, that could be a significant development for any
U.S. companies who settle with U.S. authorities in relation to conduct that occurred in China.
Finally, in April 2015, the China National Central Bureau of the Interpol released a list of China’s 100 most
wanted economic crime fugitives, as part of “Sky Net,” an initiative lead by the central government to
repatriate suspects of duty-related crimes and economic fugitives, recover their illicit gains, and prevent
other suspects from fleeing overseas.342 Since the release of this list, 18 of the 100 most wanted have
been caught. As of November 2015, Sky Net also had hunted down 863 fugitives, of whom 738 returned
from overseas, and 125 were identified within China and were arrested. Among the 738 who returned
from overseas, 305 were directly arrested from overseas, 300 came back upon persuasion, 30 were
repatriated, and 103 were expatriated or through other means. Forty-eight of these returnees were from
the United States. Illicit gains of RMB1.2 billion have been recovered to date.343
2. Legislation
In August 2015, China enacted Amendment IX to the Criminal Law, which came into effect in November
2015. A new clause was added to the law that punishes those individual or entities who seek illegitimate
interests by giving bribes to the close relatives of—or others with close ties to—former or current national
government officials. The amendment to the law was passed in response to an increase in recent years
of the provision of gifts and bribes to government officials indirectly, through people close to government
officials, such as the officials’ family members, secretaries, or domestic employees. In addition to adding
jail time for bribe givers, the new law also adds financial penalties.344 This amendment reflects a change
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in emphasis by Chinese authorities, who previously have focused attention and punishment on bribe
takers as opposed to bribe givers.345
G. Canada
In 2015, Canada’s enforcement of its newly strengthened Corruption of Foreign Public Officials Act
(“CFPOA”), continued apace. At the same time, Canada passed legislation softening its approach to
debarring corporations convicted of anti-corruption offenses from bidding on government contracts.
As previously reported last year, the Royal Canadian Mounted Police (“RCMP”), which has primary
enforcement authority for the CFPOA, and provincial authorities have been since 2014 investigating SNC-
Lavalin (“SNC”), a Montreal-based engineering and construction firm for corruption of foreign officials in
Bangladesh, Cambodia, Libya, and Algeria. Following this investigation, the Public Prosecution Services
of Canada charged SNC and two of its affiliates with fraud and corruption in connection with business
ventures in Libya.346 The government alleges that SNC paid $47.7 million in bribes to Libyan public
officials between 2001 and 2011 in exchange for contracts.347 SNC denies the accusations and has
stated that the company intends to plead not guilty.348
In a separate matter, SNC settled bribery allegations with the African Development Bank Group on
October 1, 2015 related to SNC’s securing of two construction contracts in Mozambique and Uganda.349
The settlement agreement required SNC to pay $1.5 million to support anti-corruption programs, and
imposed a conditional non-debarment for a period of two years and ten months.
In January 2015, the RCMP raided the headquarters of MagIndustries, a Toronto-based mining company,
apparently in pursuit of evidence of improper payments made to foreign officials in the Republic of
Congo.350 A whistleblower claimed that MagIndustries paid bribes to Congo officials to advance its potash
mine and processing facility in the region. MagIndustries subsequently conducted an internal
investigation, confirming that shareholder Evergreen Holding Company, a Chinese firm, and its
Congolese subsidiaries paid such bribes.351 The illicit exchanges included payments of as much as
$51,000 to Congolese officials to reduce the company’s tax liability as well as an agreement to construct
a villa for a government official. The RCMP has not yet filed charges, but this investigation could become
one of Canada’s largest CFPOA cases to date.
While Canada has pursued cases under its newly expanded anti-corruption law this year, Canada has
also softened its debarment regulations. Until recently, Canada had one of the toughest debarment
regimes of any industrialized nation. Companies and their affiliates convicted anywhere in the world of an
anti-corruption offense were banned for up to ten years from bidding on Canadian government
contracts.352 Critics lamented this inflexible approach as harsh and unfair and resulting in staggering
economic losses for Canada.353 In response, the Canadian government passed three major amendments
to its debarment policies on July 3, 2015.354 First, companies are now debarred based on convictions
acquired within the past three years, instead of ten. Second, the term of debarment is reduced from ten to
five years when a company cooperates and remediates the wrongdoing. And finally, companies are no
longer responsible for the actions of their affiliates absent evidence of the company’s involvement. The
new rules also encourage self-reporting by permitting companies to seek advanced determination of their
debarment risk.355 The rules, however, have become broader in one respect: companies merely
charged—and not convicted—with an anti-corruption violation may be debarred for up to 18 months.356
H. World Bank
The World Bank’s Integrity Vice Presidency (“INT”), which investigates allegations of fraud and corruption
in activities financed by the World Bank, opened 99 investigations in fiscal year 2015.357 This was a return
to previous levels following a fall in investigations during fiscal year 2014, when only 40 investigations
were opened.358 Despite these fluctuating numbers, the INT case substantiation rate (the proportion of
cases in which sufficient evidence was uncovered to conclude that it is more likely than not that the firm
and/or individual under investigation has participated in one of the Bank Group’s five sanctionable
practices) continues an upwards trajectory and now stands at 74%.359
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The number of entities debarred by INT this year—65—remained similar to last year’s figure.360 Debarred
entities are suspended from bidding on contracts or obtaining access to loans financed by the World
Bank; in addition, the matter may be referred to the relevant national government for further investigation.
Debarment is usually time-limited, or conditional, compelling entities to meet certain compliance
conditions before reinstatement will be considered. Other sanctions issued include conditional non-
debarments and letters of reprimand. The longest debarment issued this year was thirteen years, given to
Liberia-based N.C. Sanitors & Service Corporation, for engaging in fraudulent practices and “making
payments to various public officials involved with the [projects] and to staff of a supervising consultant, in
order to facilitate the processing of [the company’s] invoices and to maintain good relations.”361
The World Bank’s 2015 Annual Update highlighted the Bank’s growing forensic capability, which has
allowed it to go “beyond quantifying fraud and corruption in procurement to tracking losses of funds.”362 A
more detailed assessment of global transactions has facilitated the implementation of early warning
systems designed to ensure high-risk operations meet their objectives. The Bank says it is also taking
proactive steps with debarred entities to restore their participation in World Bank contract-bidding and
loan-financing mechanisms; in the fiscal year 2015, seven companies had their debarment lifted after
fulfilling the conditions of their sanctions.363
In July 2015, the World Bank approved an exhaustive overhaul of the procurement policy and procedures
relating to World Bank-financed projects.364 The new framework, to be implemented in 2016, contains
relatively minimal amendments to fraud and corruption provisions.365 Instead, the primary focus is on
boosting consistency and efficiency for example by creating bespoke integrity measures designed around
the individual procurement, rather than a one-size-fits-all approach. Companies that foresee involvement
in the procurement process will not need to make significant adjustments to current anti-corruption
measures but should remain alert to possible future changes that may be more comprehensive in this
area.
VIII. Predictions
A year with only two DOJ corporate resolutions, after years of seven or more, is a reminder of just how
unforeseeable certain major developments can be. That said, we see the following as events and trends
that companies and practitioners should prepare for, if not count on:
• An increase in the number of DOJ corporate resolutions seems very likely. There are too many
cases in the pipeline, and the DOJ has too many dedicated FCPA resources, to remain at two per
year.

• On the civil side, we expect the SEC to continue to settle enforcement actions, primarily through
administrative proceedings, at the pace we have seen in recent years. The SEC will continue to
push the envelope on what qualifies as a “thing of value” under the statute, especially in the area
of intangible benefits provided to government officials. To that end, we expect that additional
cases relating to corporate hiring will begin to settle at some point this year.

• The government may make publicly available more details concerning what it views as
appropriate compliance practices. DOJ compliance expert Hui Chen will naturally begin to refine
her views as she reviews actual programs from actual cases. Information on exactly what those
views are will be accumulated piecemeal by practitioners as resolutions and declinations take
place. It would also be logical—and fair—for the Fraud Section to promulgate more information
about its developing standards in public speeches and articles. An early indication of this trend
may have come in late January 2016, when Fraud Section Chief Andrew Weismann indicated the
Fraud Section was considering refreshing the FCPA Resource Guide.366 Over the very long term,
Hui Chen’s hiring may be the first step in a kind of federal common law for compliance.

• The DOJ may follow through on indications that it plans to announce more declinations publicly.
As noted above, Assistant Attorney General Leslie R. Caldwell has indicated an intention to
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announce more declinations publicly. To the extent this means the DOJ will grant more
declinations in the first place, this shift would, of course, be good for companies. At the same time,
some declinations that have remained private remained so because the company itself did not
wish to publicize the fact that it had FCPA issues. Companies must carefully consider the
implications when the DOJ offers to reward the company not only by declining, but also by
making a public announcement.

• Prosecutions against individuals will likely increase as the DOJ implements the policy behind the
Yates Memorandum, discussed above. Because individuals have less incentive than companies
to settle with enforcement authorities, this trend may lead to additional judicial scrutiny of some of
the agency’s long-held positions.

• The Dodd-Frank whistleblower reward regime will continue to incentivize employees, former
employees and others to bring allegations to the attention of the government, often packaged by
counsel on a contingent-fee basis, which will help keep the government’s pipeline full.

FOR MORE INFORMATION ON THIS OR OTHER FCPA MATTERS, CONTACT:
Roger M. Witten +1 212 230 8850 roger.witten@wilmerhale.com
Kimberly A. Parker +1 202 663 6987 kimberly.parker@wilmerhale.com
Jay Holtmeier +1 212 295 6413 jay.holtmeier@wilmerhale.com
Erin G.H. Sloane +1 212 295 6458 erin.sloane@wilmerhale.com
Lillian Howard Potter +1 202 663 6561 lillian.potter@wilmerhale.com
Justin Goodyear +1 212 295 6383 justin.goodyear@wilmerhale.com

The overall editors of this review were Lillian H. Potter (Washington DC) and Justin Goodyear (New
York). The contributors were Kenneth Zhou (Beijing), Jeanne Gellman (Los Angeles), Rebecca Haciski
(former Senior Associate in Washington DC), Elly Proudlock (London), Patrick Späth (Berlin), Alyssa
DaCunha (Washington DC), Tetyana Gaponenko (Palo Alto), Alison Geary (London), Pablo Kapusta
(New York), Eric Penley (Boston), Takeshige Sugimoto (Brussels), Jared B. Cohen (Boston), Ben Conery
(Boston), Sonia Fleury (Los Angeles), Christian Hollweg (Palo Alto), Julian Kutschelis (Berlin), Jian Li
Beijing), Iya Megre (New York), Eric Rahn (Washington DC), Denise Tsai (Boston), Channing Turner
(New York), and Zhouyan Xue (Beijing).

1 Those cases involved Dmitrij Harder, James Michael Rama, Richard Hirsch, James McClung, Vicente
Eduardo Garcia, Daren Condrey, Roberto Enrique Rincon-Fernandez, and Abraham Jose Shiera-Bastidas.
2 Those cases involved Benito Chinea and Joseph DeMeneses.
3 Those resolutions involved IAP Worldwide Services Inc. and Louis Berger International Inc.
4 Those resolutions involved Alcoa World Alumina, Marubeni Corporation, Hewlett-Packard A.O., Hewlett-
Packard Polska, Hewlett-Packard Mexico, Bio-Rad Laboratories, Dallas Airmotive Inc., Avon Products Inc., Avon
Products (China) Co. Ltd., Alstom S.A., Alstom Grid Inc., Alstom Power Inc., and Alstom Network Schweiz AG.
5 IAP Worldwide Services Inc. agreed to pay a $7.1 million penalty, and Louis Berger International Inc. agreed
to pay a $17.1 million penalty.
6 WilmerHale treats actions against a group of corporations stemming from related facts as a single case, and
actions against multiple individuals stemming from related facts as separate cases. Actions filed under seal and later
made public are counted in the year in which they were originally filed.
– 32 –

7 Q&A with DOJ Fraud Chief Andrew Weissmann, TRACE TRENDS: A COMPLIANCE CONVERSATION (Jan. 26,
2016), http://www.traceinternational.org/qa-with-doj-fraud-chief-andrew-weissmann.
8 Those resolutions were with PBSJ Corporation, Goodyear Tire & Rubber Co., FLIR Systems, Inc., BHP
Billiton Ltd. and BHP Billiton Plc, Mead Johnson Nutrition Company, The Bank of New York Mellon Corporation,
Hitachi, Ltd., Hyperdynamics Corp., and Bristol-Myers Squibb Co.
9 Those resolutions were with Walid Hatoum and Vicente Garcia.
10 The so-called Filip factors, which were established in 2008 by former Deputy Attorney General Mark Filip,
are the DOJ’s internal guidance for providing cooperation credit to companies and include the strength of a corporate
compliance program.
11 Ross Todd, DOJ, SEC Officials Share Views, Defend Record, THE RECORDER, Jan. 30, 2015.
12 Ross Todd, DOJ, SEC Officials Share Views, Defend Record, THE RECORDER, Jan. 30, 2015.
13 Ross Todd, DOJ, SEC Officials Share Views, Defend Record, THE RECORDER, Jan. 30, 2015.
14 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at New York University
Law School’s Program on Corporate Compliance and Enforcement (Apr. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-new-york-university-
law.
15 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at New York University
Law School’s Program on Corporate Compliance and Enforcement (Apr. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-new-york-university-
law.
16 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at New York University
Law School’s Program on Corporate Compliance and Enforcement (Apr. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-new-york-university-
law.
17 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at New York University
Law School’s Program on Corporate Compliance and Enforcement (Apr. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-new-york-university-
law.
18 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at New York University
Law School’s Program on Corporate Compliance and Enforcement (Apr. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-new-york-university-
law.
19 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Memorandum on Individual
Accountability for Corporate Wrongdoing (Sept. 9, 2015), http://www.justice.gov/dag/file/769036/download.
20 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Memorandum on Individual
Accountability for Corporate Wrongdoing at 3 (Sept. 9, 2015), http://www.justice.gov/dag/file/769036/download.
21 The Yates Memorandum also instructs criminal and civil attorneys for the government to focus on individuals
from the inception of an investigation. It stresses early communication between criminal and civil attorneys,
instructing prosecutors to discuss civil referrals in the event of a decision not to prosecute and directing civil attorneys
to involve prosecutors when they believe that an individual identified in a corporate investigation should face criminal
charges. Civil attorneys should also focus on individuals and evaluate whether to bring suit against them based on
considerations beyond an individual’s ability to pay. In addition, the memo provides new guidance for the resolution of
investigations. Absent extraordinary circumstances, the Department will not agree to a corporate resolution that
protects an individual from criminal or civil liability. In cases where the investigation of an individual will continue after
prosecutors seek authorization to resolve a corporate investigation, government attorneys must identify in writing the
potentially liable individuals and propose a plan to resolve the matter before the applicable statute of limitations
expires. If the government ultimately decides not to charge individuals, prosecutors must memorialize that
determination and have it approved by the U.S. Attorney or Assistant Attorney General or their designees. See Sally
Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Memorandum on Individual Accountability for
Corporate Wrongdoing, at 4-7 (Sept. 9, 2015), http://www.justice.gov/dag/file/769036/download.
22 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at the Second Annual
Global Investigations Review Conference (Sept. 22, 2015), http://www.justice.gov/opa/speech/assistant-attorney-
general-leslie-r-caldwell-delivers-remarks-second-annual-global-0.
23 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at the Second Annual
Global Investigations Review Conference (Sept. 22, 2015), http://www.justice.gov/opa/speech/assistant-attorney-
general-leslie-r-caldwell-delivers-remarks-second-annual-global-0.
24 United States Attorneys’ Manual § 9-28.700 (Nov. 2015), http://www.justice.gov/usam/usam-9-28000-
principles-federal-prosecution-business-organizations#9-28.720.
25 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Remarks at American Banking
Association and American Bar Association Money Laundering Enforcement Conference (Nov. 16, 2015),
http://www.justice.gov/opa/speech/deputy-attorney-general-sally-quillian-yates-delivers-remarks-american-banking-0.
– 33 –

26 U.S. Attorneys’ Manual § 9-28.710 (Aug. 2008), http://www.justice.gov/usam/usam-9-28000-principles-
federal-prosecution-business-organizations.
27 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Memorandum on Individual
Accountability for Corporate Wrongdoing, at 4 (Sept. 9, 2015), http://www.justice.gov/dag/file/769036/download.
28 Leslie R. Caldwell, Assistant Attorney General, U.S. Department of Justice, Remarks at the Second Annual
Global Investigations Review Conference (Sept. 22, 2015), http://www.justice.gov/opa/speech/assistant-attorney-
general-leslie-r-caldwell-delivers-remarks-second-annual-global-0.
29 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Remarks at American Banking
Association and American Bar Association Money Laundering Enforcement Conference (Nov. 16, 2015),
http://www.justice.gov/opa/speech/deputy-attorney-general-sally-quillian-yates-delivers-remarks-american-banking-0.
30 Sally Quillian Yates, Deputy Attorney General, U.S. Department of Justice, Remarks at American Banking
Association and American Bar Association Money Laundering Enforcement Conference (Nov. 16, 2015),
http://www.justice.gov/opa/speech/deputy-attorney-general-sally-quillian-yates-delivers-remarks-american-banking-0.
31 See Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1418-20, 1423-27 (3d Cir. 1991)
(surveying the law of attorney-client privilege before concluding that disclosure of information obtained during an
internal investigation to the SEC and DOJ resulted in waiver of a corporation’s privilege).
32 Andrew Ceresney, Director, Division of Enforcement, SEC, American Conference Institute’s 32nd FCPA
Conference Keynote Address (Nov. 17, 2015), http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-
15.html.
33 Andrew Ceresney, Director, Division of Enforcement, SEC, 32nd Annual FCPA Conference Keynote
Address (Nov.17, 2015), http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-15.html#_ftnref8.
34 Andrew Ceresney, Director, Division of Enforcement, SEC, 32nd Annual FCPA Conference Keynote
Address (Nov. 17, 2015), http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-15.html#_ftnref8.
35 Andrew Ceresney, Director, Division of Enforcement, SEC, 32nd Annual FCPA Conference Keynote
Address (Nov. 17, 2015), http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-15.html#_ftnref8
36 U.S. Securities and Exchange Commission Press Release No. 2013-65: SEC Announces Non-Prosecution
Agreement With Ralph Laurent Corporation Involving FCPA Misconduct (Apr. 22, 2013); Non-Prosecution Agreement
between U.S. Securities and Exchange Commission and Ralph Lauren Corporation (Apr. 18, 2013); U.S. Securities
and Exchange Commission Press Release No. 2011-112: Tenaris to Pay $5.4 Million in SEC’s First-Ever Deferred
Prosecution Agreement (May 17, 2011); Deferred Prosecution Agreement between U.S. Securities and Exchange
Commission and Tenaris, S.A. (May 17, 2011).
37 Ellen Nakashima, Justice Department could give firms a pass on foreign bribery if they confess, WASH. POST,
Nov. 11, 2015.
38 Josh Kovensky, Transcript: Stokes and Brockmeyer remarks, MAIN JUSTICE (Nov. 25, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/25/transcript-stokes-and-brockmeyer-remarks/.
39 See Josh Kovensky, Transcript: Stokes and Brockmeyer remarks, MAIN JUSTICE (Nov. 25, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/25/transcript-stokes-and-brockmeyer-remarks/.
40 U.S. Department of Justice Press Release: New Compliance Counsel Expert Retained by the DOJ Fraud
Section (Nov. 3, 2015).
41 U.S. Department of Justice Press Release: New Compliance Counsel Expert Retained by the DOJ Fraud
Section (Nov. 3, 2015).
42 U.S. Department of Justice Press Release: New Compliance Counsel Expert Retained by the DOJ Fraud
Section (Nov. 3, 2015).
43 Leslie R. Caldwell, Assistant Attorney General, DOJ, SIFMA Compliance and Legal Society New York
Regional Seminar (Nov. 2, 2015), http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-
speaks-sifma-compliance-and-legal-society; Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew
Weissmann and Hui Chen discuss compliance, MAIN JUSTICE (Nov. 24, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-sections-andrew-weissmann-and-hui-chen-
discuss-compliance/; Leslie R. Caldwell, Assistant Attorney General, DOJ, American Conference Institute’s 32nd
Annual International Conference on Foreign Corrupt Practices Act (Nov. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-american-conference.
44 Leslie R. Caldwell, Assistant Attorney General, DOJ, American Conference Institute’s 32nd Annual
International Conference on Foreign Corrupt Practices Act (Nov. 17, 2015),
http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-american-conference.
45 Leslie R. Caldwell, Assistant Attorney General, DOJ, SIFMA Compliance and Legal Society New York
Regional Seminar (Nov. 2, 2015), http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-
speaks-sifma-compliance-and-legal-society.
46 Mike Koehler, Revisiting a Foreign Corrupt Practices Act Compliance Defense, 2012 WISC. L. REV. 609, 611
(2012).
– 34 –

47 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
48 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
49 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
50 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
51 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
52 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
53 Just Anti-Corruption Staff, Transcript: Fraud Section’s Andrew Weissmann and Hui Chen discuss
compliance, MAIN JUSTICE (Nov. 24, 2015), http://www.mainjustice.com/justanticorruption/2015/11/24/transcript-fraud-
sections-andrew-weissmann-and-hui-chen-discuss-compliance/.
54 U.S. Securities and Exchange Commission Press Release No. 2015-170: SEC Charges BNY Mellon With
FCPA Violations, http://www.sec.gov/news/pressrelease/2015-170.html.
55 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶ 1-2 (Aug. 18, 2015).
56 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶ 1 (Aug. 18, 2015).
57 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶ 31 (Aug. 18, 2015).
58 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶¶ 14-15 and 17 (Aug. 18, 2015).
59 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶¶ 14-18 (Aug. 18, 2015).
60 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶ 18 (Aug. 18, 2015).
61 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶ 18 (Aug. 18, 2015).
62 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶¶ 19-20 (Aug. 18, 2015).
63 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Bank of New York Mellon Corporation,
Rel. No. 3679, File No. 3-16762, ¶¶ 21-22 and 24 (Aug. 18, 2015).
64 Rebecca Hughes Parker and Megan Zwiebel, BNY Mellon Settles Nepotism-Related Charges for $14.8
Million, THE FCPA REPORT, Aug. 19, 2015, http://www.fcpareport.com/article/2160.
65 Jean Eaglesham, et al., Wall Street Pushes Back on Foreign Bribery Probe, WALL ST. J., Apr. 29, 2015.
66 Non-Prosecution Agreement between U.S. Department of Justice and IAP Worldwide Services, Inc., at 3
(June 16, 2015), http://www.justice.gov/opa/file/478281/download.
67 Non-Prosecution Agreement between U.S. Department of Justice and IAP Worldwide Services, Inc., (June
16, 2015), Attachment A ¶¶ 11-12.
68 Non-Prosecution Agreement between U.S. Department of Justice and IAP Worldwide Services, Inc.,
Attachment A ¶¶ 13-14 (June 16, 2015).
69 Non-Prosecution Agreement between U.S. Department of Justice and IAP Worldwide Services, Inc.,
Attachment A ¶ 23 (June 16, 2015).
70 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, ¶ 7 (D.N.J.
July 7, 2015).
71 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A
¶ 8 (D.N.J. July 7, 2015).
72 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A
¶ 10 (D.N.J. July 7, 2015).
73 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A
¶¶ 15, 22, 24, 30 (D.N.J. July 7, 2015).
– 35 –

74 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, ¶ 4 (D.N.J.
July 7, 2015).
75 U.S. Securities and Exchange Commission Press Release No. 2015-93: SEC Charges BHP Billiton With
Violating FCPA at Olympic Games (May 20, 2015).
76 U.S. Securities and Exchange Commission Press Release No. 2015-93: SEC Charges BHP Billiton With
Violating FCPA at Olympic Games (May 20, 2015).
77 U.S. Securities and Exchange Commission Press Release No. 2015-93: SEC Charges BHP Billiton With
Violating FCPA at Olympic Games (May 20, 2015).
78 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶ 8 (May 20, 2015).
79 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶ 1 (May 20, 2015).
80 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 1, 15 (May 20, 2015).
81 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶ 15 (May 20, 2015).
82 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 1, 11 (May 20, 2015).
83 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 11 (May 20, 2015).
84 Andrew Ceresney, Director, Division of Enforcement, SEC, American Conference Institute’s 32nd
International Conference on the Foreign Corrupt Practices Act (Nov. 17, 2015),
http://www.sec.gov/news/speech/ceresney-fcpa-keynote-11-17-15.html.
85 U.S. Securities and Exchange Commission Press Release No. 2015-62: SEC Charges Oregon-Based
Defense Contractor With FCPA Violations (Apr. 8, 2015).
86 Order Instituting Cease-and-Desist Proceedings, In the Matter of Stephen Timms and Yasser Ramahi, Rel.
No. 73616, File No. 3-16281 (Nov. 17, 2014).
87 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶¶ 1, 10-11, 19 (Apr. 8, 2015).
88 U.S. Securities and Exchange Commission Press Release No. 2015-62: SEC Charges Oregon-Based
Defense Contractor With FCPA Violations (Apr. 8, 2015).
89 U.S. Securities and Exchange Commission Press Release No. 2015-62: SEC Charges Oregon-Based
Defense Contractor With FCPA Violations (Apr. 8, 2015).
90 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶¶ 22-24 (Apr. 8, 2015).
91 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶ 4 (Apr. 8, 2015).
92 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶ 4 (Apr. 8, 2015).
93 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶ 5 (Apr. 8, 2015).
94 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶ 6 (Apr. 8, 2015).
95 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶¶ 10-15 (Apr. 8, 2015).
96 U.S. Securities and Exchange Commission Press Release No. 2015-62: SEC Charges Oregon-Based
Defense Contractor With FCPA Violations (Apr. 8, 2015).
97 Order Instituting Cease-and-Desist Proceedings, In the Matter of FLIR Systems, Inc., Rel. No. 74673, File
No. 3-16478, ¶ 17 (Apr. 8, 2015).
98 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶ 2 (May 20, 2015).
99 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 17-18 (May 20, 2015).
100 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶ 22 (May 20, 2015).
101 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 19-20 (May 20, 2015).
102 Order Instituting Cease-and-Desist Proceedings, In the Matter of BHP Billiton Ltd. and BHP Billiton plc, Rel.
No. 74998, File No. 3-16546, ¶¶ 21, 23-25 (May 20, 2015).
103 U.S. Securities and Exchange Commission Press Release No. 2015-93: SEC Charges BHP Billiton With
Violating FCPA at Olympic Games (May 20, 2015).
– 36 –

104 U.S. Securities and Exchange Commission Press Release No. 2015-13: SEC Charges Former Executive at
Tampa-based Engineering Firm With FCPA Violations; Company to Pay $3.4 Million in Deferred Prosecution
Agreement (Jan. 22, 2015).
105 U.S. Securities and Exchange Commission Press Release No. 2015-13: SEC Charges Former Executive at
Tampa-based Engineering Firm With FCPA Violations; Company to Pay $3.4 Million in Deferred Prosecution
Agreement (Jan. 22, 2015).
106 Deferred Prosecution Agreement between U.S. Securities and Exchange Commission and The Atkins North
America Holdings Corporation, Exhibit A ¶¶ 2, 4 (Jan. 22, 2015).
107 Deferred Prosecution Agreement between U.S. Securities and Exchange Commission and The Atkins North
America Holdings Corporation, Exhibit A ¶¶ 5-17 (Jan. 22, 2015)
108 Deferred Prosecution Agreement between U.S. Securities and Exchange Commission and The Atkins North
America Holdings Corporation, Exhibit A ¶¶ 19-22 (Jan. 22, 2015).
109 Deferred Prosecution Agreement between U.S. Securities and Exchange Commission and The Atkins North
America Holdings Corporation, Exhibit A ¶ 18 (Jan. 22, 2015).
110 Deferred Prosecution Agreement between U.S. Securities and Exchange Commission and The Atkins North
America Holdings Corporation, Exhibit A ¶¶ 27-29 (Jan. 22, 2015).
111 U.S. Securities and Exchange Commission Press Release No. 2015-38: SEC Charges Goodyear With
FCPA Violations (Feb. 24, 2015).
112 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, § IV (Feb. 24, 2015).
113 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶ 1 (Feb. 24, 2015).
114 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶ 7 (Feb. 24, 2015).
115 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶¶ 8-10 (Feb. 24, 2015).
116 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶ 10 (Feb. 24, 2015).
117 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶ 8 (Feb. 24, 2015).
118 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶¶ 12-14 (Feb. 24, 2015).
119 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, § IV.D (Feb. 24, 2015).
120 15 U.S.C. § 78m(b)(2)(A) (issuers shall make and keep books and records “which, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets of the issuer”).
121 Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel. No.
74356, File No. 3-16400, ¶ 19 (Feb. 24, 2015).
122 Order Instituting Cease-and-Desist Proceedings, In the Matter of Bristol-Myers Squibb Co., Rel. No. 76073,
File No. 3-16881, at 7 (Oct. 5, 2015).
123 Order Instituting Cease-and-Desist Proceedings, In the Matter of Bristol-Myers Squibb Co., Rel. No. 76073,
File No. 3-16881, at 1 (Oct. 5, 2015).
124 Order Instituting Cease-and-Desist Proceedings, In the Matter of Bristol-Myers Squibb Co., Rel. No. 76073,
File No. 3-16881, ¶ 11 (Oct. 5, 2015).
125 Order Instituting Cease-and-Desist Proceedings, In the Matter of Bristol-Myers Squibb Co., Rel. No. 76073,
File No. 3-16881, ¶ 12 (Oct. 5, 2015).
126 Order Instituting Cease-and-Desist Proceedings, In the Matter of Bristol-Myers Squibb Co., Rel. No. 76073,
File No. 3-16881, ¶¶ 5-10 (Oct. 5, 2015).
127 See Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel.
No. 74356, File No. 3-16400 (Feb. 24, 2015).
128 See Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel.
No. 74356, File No. 3-16400, ¶ 19 (Feb. 24, 2015).
129 See Order Instituting Cease-and-Desist Proceedings, In the Matter of The Goodyear Tire & Rubber Co., Rel.
No. 74356, File No. 3-16400, ¶ 19 (Feb. 24, 2015).
130 See Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704 (July 28, 2015).
131 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 12 (July 28, 2015).
132 See, e.g., Harold Williams, Chairman, SEC, Address at the SEC Developments Conference (Jan. 13, 1981),
at 3, https://www.sec.gov/news/speech/1981/011381williams.pdf.
– 37 –

133 Sarah N. Lynch, Exclusive: SEC Launched Civil Probe into FIFA Bribery Case, REUTERS, July 17, 2015,
http://www.reuters.com/article/us-sec-fifa-probe-idUSKCN0PS00120150718#TKbuAJOohZPYST0i.97.
134 15 U.S.C. § 78m(b)(2)(B).
135 Complaint, SEC v. Peterson, No. 12-cv-2033 (E.D.N.Y. Apr. 25, 2012).
136 15 U.S.C. § 78m(b)(2)(B).
137 U.S. Securities and Exchange Commission Press Release No. 2015-154: SEC Charges Mead Johnson
Nutrition With FCPA Violations (July 28, 2015).
138 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶¶ 2-3 (July 28, 2015).
139 U.S. Securities and Exchange Commission Press Release No. 2015-154: SEC Charges Mead Johnson
Nutrition With FCPA Violations (July 28, 2015).
140 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, § IV.B (July 28, 2015).
141 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 9 (July 28, 2015).
142 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 10 (July 28, 2015).
143 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶¶ 5, 7 (July 28, 2015).
144 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶¶ 7, 11 (July 28, 2015).
145 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 14 (July 28, 2015).
146 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 14 (July 28, 2015).
147 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 14 (July 28, 2015).
148 Order Instituting Cease-and-Desist Proceedings, In the Matter of Mead Johnson Nutrition Co., Rel. No.
75532, File No. 3-16704, ¶ 16 (July 28, 2015).
149 Order Instituting Cease-and-Desist Proceedings, In the Matter of Hyperdynamics Corp., Rel. No. 76006, File
No. 3-16843, pp. 3-4 (Sept. 29, 2015).
150 Order Instituting Cease-and-Desist Proceedings, In the Matter of Hyperdynamics Corp., Rel. No. 76006, File
No. 3-16843, ¶¶ 4-5 (Sept. 29, 2015).
151 Order Instituting Cease-and-Desist Proceedings, In the Matter of Hyperdynamics Corp., Rel. No. 76006, File
No. 3-16843, ¶¶ 4-6 (Sept. 29, 2015).
152 U.S. Securities and Exchange Commission Press Release: SEC Charges Oracle Corporation With FCPA
Violations Related to Secret Side Funds in India (Aug. 16, 2012).
153 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶ 1 (D.D.C. Sept. 28, 2015).
154 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 3, 13-15, and 17 (D.D.C. Sept. 28, 2015); Consent of
Defendant, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶ 2 (D.D.C. Sept. 28, 2015); Final judgment, SEC v Hitachi, Ltd.,
No. 15-CV-01573, at 1-2 (D.D.C. Sept. 28, 2015).
155 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 13-17 and 28-30 (D.D.C. Sept. 28, 2015).
156 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 3-4 and 22-26 (D.D.C. Sept. 28, 2015).
157 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 32-36 (D.D.C. Sept. 28, 2015).
158 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 46-57 (D.D.C. Sept. 28, 2015).
159 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 58-62 and 70-71 (D.D.C. Sept. 28, 2015).
160 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 63-67 (D.D.C. Sept. 28, 2015).
161 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 40-45 (D.D.C. Sept. 28, 2015).
162 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 70-71 (D.D.C. Sept. 28, 2015).
163 Complaint, SEC v Hitachi, Ltd., No. 15-CV-01573, ¶¶ 71 (D.D.C. Sept. 28, 2015).
164 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A
¶ 3 (D.N.J. July 7, 2015).
165 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A,
¶¶ 37, 41 (D.N.J. July 7, 2015).
166 Plea Agreement, United States v. James M. Rama, No. 1:15-cr-00143-GBL (E.D. Va. June 16, 2015).
167 See Stephen Dockery, Defense Contractor Jailed Over Kuwait Bribery, WALL ST. J., Oct. 9, 2015,
http://blogs.wsj.com/riskandcompliance/2015/10/09/defense-contractor-jailed-over-kuwait-bribery/.
168 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A,
¶ 18 (D.N.J. July 7, 2015).
169 Deferred Prosecution Agreement, United States v. Louis Berger Int’l, Inc., Mag. No. 15-3624, Attachment A,
¶¶ 37, 41 (D.N.J. July 7, 2015).
– 38 –

170 U.S. Department of Justice Press Release No. 15-066: Russian Nuclear Energy Official Pleads Guilty to
Money Laundering Conspiracy Involving Violations of the Foreign Corrupt Practices Act (Aug. 31, 2015).
171 U.S. Department of Justice Press Release No. 15-066: Russian Nuclear Energy Official Pleads Guilty to
Money Laundering Conspiracy Involving Violations of the Foreign Corrupt Practices Act (Aug. 31, 2015).
172 U.S. Department of Justice Press Release No. 15-1531: Former Russian Nuclear Energy Official Sentenced
to 48 Months in Prison for Money Laundering Conspiracy Involving Foreign Corrupt Practices Act Violations (Dec. 15,
2015).
173 Information, United States v. Daren Condrey, Cr. No. 15-0336, ¶ 2 (D. Md. June 16, 2015).
174 Motion to Dismiss Indictment, United States v. Mikerin, 14-cr-00529-TDC, at 4 (D. Md. Mar. 13, 2015) (“Mr.
Mikerin is a “foreign official” under the FCPA.”).
175 Plea Agreement, United States v. Daren Condrey, Cr. No. 15-0336 (D. Md. June 17, 2015).
176 United States v. Esquenazi, 752 F.3d 912, 925 (11th Cir. 2014) (defining “instrumentality” under the FCPA
as “an entity controlled by the government of a foreign country that performs a function the controlling government
treats as its own”) cert. denied, 135 S. Ct. 293 (2014).
177 U.S. Department of Justice Press Release No 15-008: Former Owner and President of Pennsylvania
Consulting Companies Charged with Foreign Bribery (Jan. 6, 2015).
178 Indictment, United States v. Dmitrij Harder, No. 15-CR-00001-PD (E.D. Pa. Jan. 6, 2015).
179 U.S. Department of Justice Press Release No 15-008: Former Owner and President of Pennsylvania
Consulting Companies Charged with Foreign Bribery (Jan. 6, 2015).
180 U.S. Department of Justice Press Release No 15-008: Former Owner and President of Pennsylvania
Consulting Companies Charged with Foreign Bribery (Jan. 6, 2015).
181 U.S. Department of Justice Press Release No 15-008: Former Owner and President of Pennsylvania
Consulting Companies Charged with Foreign Bribery (Jan. 6, 2015).
182 U.S. Department of Justice Press Release No 15-008: Former Owner and President of Pennsylvania
Consulting Companies Charged with Foreign Bribery (Jan. 6, 2015).
183 See United States v. Dmitrij Harder, No. 15-CR-00001-PD (E.D. Pa. Nov. 5, 2015).
184 U.S. Department of Justice Press Release No 15-1005: Former Executive Pleads Guilty to Conspiring to
Bribe Panamanian Officials (Aug. 12, 2015).
185 Order Instituting Cease-and-Desist Proceedings, In the Matter of Vicente E. Garcia, Rel. No. 75684, File No.
3-16750, ¶ 1 (Aug. 12, 2015). On February 1, 2016, the SEC resolved with software manufacturer SAP SE, Garcia’s
employer, based on Garcia’s conduct. The company agreed to pay $3,700,000 to disgorge profits from contracts
allegedly awarded based on bribes, and an additional $188,896 in prejudgment interest. Order Instituting Cease-and-
Desist Proceedings, In the Matter of SAP SE, Rel. No. 77005, File No. 3-17080, at 7 (Feb. 1, 2016). The SEC’s
Order found that SAP SE violated the books-and-records and internal-controls provisions. Id. at ¶¶ 26-27.
186 U.S. Securities and Exchange Commission Press Release No. 2015-165: SEC Charges Former Software
Executive with FCPA Violations (Aug. 12, 2015).
187 U.S. Securities and Exchange Commission Press Release No. 2015-165: SEC Charges Former Software
Executive with FCPA Violations (Aug. 12, 2015).
188 U.S. Securities and Exchange Commission Press Release No. 2015-165: SEC Charges Former Software
Executive with FCPA Violations (Aug. 12, 2015).
189 U.S. Department of Justice Press Release No 15-1005: Former Executive Pleads Guilty to Conspiring to
Bribe Panamanian Officials (Aug. 12, 2015); U.S. Securities and Exchange Commission Press Release No. 2015-
165: SEC Charges Former Software Executive with FCPA Violations (Aug. 12, 2015); Order Instituting Cease-and-
Desist Proceedings, In the Matter of Vicente E. Garcia, Rel. No. 75684, File No. 3-16750, ¶¶ 6, 14, 20 (Aug. 12,
2015).
190 Order Instituting Cease-and-Desist Proceedings, In the Matter of Vicente E. Garcia, Rel. No. 75684, File No.
3-16750, ¶ 16 (Aug. 12, 2015).
191 Order Instituting Cease-and-Desist Proceedings, In the Matter of Vicente E. Garcia, Rel. No. 75684, File No.
3-16750, ¶ 16 (Aug. 12, 2015).
192 Order Instituting Cease-and-Desist Proceedings, In the Matter of Vicente E. Garcia, Rel. No. 75684, File No.
3-16750, ¶ 20 (Aug. 12, 2015).
193 Indictment, United States v. Rincon-Fernandez, No. 15-CR-00654 (S.D. Tex. Dec. 10, 2015).
194 Nate Raymond, U.S. Makes Arrests Over Venezuelan Energy Corruption Scheme, REUTERS, Dec. 20, 2015;
José De Córdoba and Dudley Althaus, Contractor Arrested in U.S. Amid Probe of Venezuelan Oil Giant, WALL ST. J.,
Dec. 21, 2015.
195 Indictment, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶¶ 4-5 (S.D. Tex. Dec. 10, 2015).
196 Indictment, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶¶ 24-25, 85-88 (S.D. Tex. Dec. 10,
2015).
197 Indictment, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶ 29 (S.D. Tex. Dec. 10, 2015).
198 Indictment, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶ 30 (S.D. Tex. Dec. 10, 2015).
– 39 –

199 Order of Detention Pending Trial, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶ 4 (S.D. Tex. Dec.
21, 2015).
200 Order of Detention Pending Trial, United States v. Rincon-Fernandez, No. 15-CR-00654, ¶ 4 (S.D. Tex. Dec.
21, 2015).
201 Indictment, United States v. Rincon-Fernandez., No. 15-CR-00654, ¶¶ 100-103 (S.D. Tex. Dec. 10, 2015).
202 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352 (Jan. 22, 2015).
203 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352, ¶ 2 (Jan. 22, 2015).
204 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352, ¶¶ 5-18 (Jan. 22, 2015).
205 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352, ¶¶ 20-22 (Jan. 22, 2015).
206 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352, ¶¶ 26-28 (Jan. 22, 2015).
207 Order Instituting Cease-and-Desist Proceedings, In the Matter of Walid Hatoum, Rel. No. 74112, File No. 3-
16352, §§ II, IV ¶ B (Jan. 22, 2015).
208 U.S. Department of Justice Press Release No. 13-862: Former Senior Executive of French Power Company
Charged in Connection with Foreign Bribery Scheme (July 30, 2013).
209 U.S. Department of Justice Press Release No. 14-752: Former Executive of French Power Company
Subsidiary Pleads Guilty in Connection with Foreign Bribery Scheme (July 17, 2014).
210 United States v. Hoskins, No. 3:12-CR238-JBA, 2015 WL 4774918, at *1 (D. Conn. Aug. 13, 2015).
211 United States v. Hoskins, No. 3:12-CR238-JBA, 2015 WL 4774918, at *2 (D. Conn. Aug. 13, 2015)
(alterations in original); compare Second Superseding Indictment, United States v. Hoskins, No. 3:12-CR-238-JBA, ¶
26(a) (D. Conn. July 30, 2013) with Third Superseding Indictment, United States v. Hoskins, 3:12-CR-238-JBA ¶
26(a) (D. Conn. Apr. 15, 2015).
212 Government’s Response to Defendants’ Second Motion to Dismiss, United States v. Hoskins, 3:12-CR-238-
JBA, 15 n.5 (D. Conn. June 25, 2015).
213 Government’s Motion In Limine to Preclude the Defendant from Arguing that Agency is Sole Basis for
Conviction on Substantive FCPA Violations, United States v. Hoskins, No. 3:12-CR-238-JBA (D. Conn. May 6, 2015).
214 United States v. Hoskins, No. 3:12-CR-238-JBA, 2015 WL 4774918, at *2 (D. Conn. Aug. 13, 2015).
215 United States v. Hoskins, No. 3:12-CR-238-JBA, 2015 WL 4774918, at *9 (D. Conn. Aug. 13, 2015).
216 Michael Koehler, Significant dd-3 Development in Africa Sting Case, FCPA PROFESSOR (June 9, 2011),

Significant dd-3 Development in Africa Sting Case


217 Michael Koehler, Significant dd-3 Development in Africa Sting Case, FCPA PROFESSOR (June 9, 2011),

Significant dd-3 Development in Africa Sting Case


218 Motion for Reconsideration re Order on Motion in Limine, Order on Motion to Dismiss, United States v.
Hoskins, No. 3:12-CR-00238-JBA (D. Conn. Aug. 27, 2015).
219 Scheduling Order, United States v. Hoskins, No. 3:12-CR-00238-JBA (D. Conn. Nov. 12, 2015).
220 Indictment, United States v. Sidorenko, No. 3:14-cr-00341-CRB, ¶¶ 24-37 (N.D. Cal. June 26, 2014).
221 Indictment, United States v. Sidorenko, No. 3:14-cr-00341-CRB, ¶¶ 1-23 (N.D. Cal. June 26, 2014).
222 United States v. Sidorenko, 102 F. Supp. 3d 1124, 1131-33 (N.D. Cal. 2015).
223 Transcript of Proceedings, United States v. Vassiliev, No. CR 14-0341-CRB, pp. 10-13 (N.D. Cal. Apr. 17,
2015).
224 Electronic Order, United States v. Sidorenko, No. 3:14-cr-00341-CRB, ECF Dkt. No. 75 (N.D. Cal. July 23,
2015).
225 United States v. Sidorenko, 102 F. Supp. 3d 1124, 1132-33 (N.D. Cal. 2015) (citing World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286 (1980)).
226 Indictment, United States v. Sigelman, No. 14-CR-00263-JEI, ¶¶ 7-8, 26, 87, 89, 96 (D.N.J. May 9, 2014).
227 Indictment, United States v. Sigelman, No. 14-CR-00263-JEI, ¶ 8 (D.N.J. May 9, 2014).
228 Indictment, United States v. Sigelman, No. 14-CR-00263-JEI, ¶¶ 38-40, 73-85 (D.N.J. May 9, 2014).
229 Paul Barrett, Justice Department Stumbles in Closely Watched Foreign-Bribery Case, BLOOMBERG, June 15,
2015.
230 Nathan Bomey, Former Oil Exec Pleads Guilty in Colombian Bribery Case, USA TODAY, June 15, 2015.
231 Joel Schectman, PetroTiger Bribery Trial Halted as Former CEO Pleads Guilty, WALL ST. J., June 15, 2015;
Steven Church and David Voreacos, PetroTiger’s Former Co-CEO Pleads Guilty During Bribe Trial, BLOOMBERG,
June 15, 2015.
232 Paul Barrett, Justice Department Stumbles in Closely Watched Foreign-Bribery Case, BLOOMBERG, June 15,
2015.
233 Paul Barrett, Justice Department Stumbles in Closely Watched Foreign-Bribery Case, BLOOMBERG, June 15,
2015.
– 40 –

234 Paul Barrett, Justice Department Stumbles in Closely Watched Foreign-Bribery Case, BLOOMBERG, June 15,
2015.
235 Joel Schectman, Ex-CEO Sigelman of PetroTiger Sentenced to Probation Over Bribery, WALL ST. J., June
16, 2015.
236 Joel Schectman, Ex-CEO Sigelman of PetroTiger Sentenced to Probation Over Bribery, WALL ST. J., June
16, 2015; Plea Agreement, United States v. Sigelman, No. 14-CR-00263-JEI (D.N.J. June 15, 2015).
237 Josh Kovensky, Sigelman Sentenced to 3 Years Probation in Foreign Bribery Conspiracy, MAIN JUSTICE
(June 16, 2015), http://www.mainjustice.com/justanticorruption/2015/06/16/sigelman-sentenced-to-3-years-probation-
in-foreign-bribery-conspiracy/.
238 Josh Kovensky, Sigelman Sentenced to 3 Years Probation in Foreign Bribery Conspiracy, MAIN JUSTICE
(June 16, 2015), http://www.mainjustice.com/justanticorruption/2015/06/16/sigelman-sentenced-to-3-years-probation-
in-foreign-bribery-conspiracy/.
239 U.S. Department of Justice Press Release No. 15-741: Former Chief Executive Officer of Oil Services
Company Pleads Guilty to Foreign Bribery Charge (June 15, 2015).
240 Paul Barrett, Justice Department Stumbles in Closely Watched Foreign-Bribery Case, BLOOMBERG, June 15,
2015.
241 Mike Koehler, U.S. v. Sigelman – Just The Latest DOJ FCPA Trial Debacle, FCPA PROFESSOR (June 22,
2015), http://www.fcpaprofessor.com/u-s-v-sigelman-just-the-latest-doj-fcpa-trial-debacle.
242 Christopher Matthews, FCPA Sting Setbacks Put Pressure on the FBI, WALL ST. J., Feb. 6, 2012,
http://blogs.wsj.com/corruption-currents/2012/02/06/fcpa-sting-setbacks-put-pressure-on-the-fbi/.
243 Josh Kovensky, FBI Conducting Electronic FCPA Surveillance, Official Says, MAIN JUSTICE (Nov. 19, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/19/fbi-conducting-electronic-fcpa-surveillance-official-says/.
244 U.S. Department of Justice Press Release No. 15-741: Former Chief Executive Officer of Oil Services
Company Pleads Guilty to Foreign Bribery Charge (June 15, 2015).
245 U.S. Department of Justice Press Release No. 15-741: Former Chief Executive Officer of Oil Services
Company Pleads Guilty to Foreign Bribery Charge (June 15, 2015).
246 Richard Cassin, PetroTiger Joins Morgan Stanley With Rare DOJ Public Declination, FCPA BLOG (June 16,
2015, 10:30 AM), http://www.fcpablog.com/blog/2015/6/16/petrotiger-joins-morgan-stanley-with-rare-doj-public-
declina.html.
247 U.S. Department of Justice Press Release No. 12-534: Former Morgan Stanley Managing Director Pleads
Guilty for Role in Evading Internal Controls Required by FCPA (Apr. 25, 2012).
248 Dylan Toker, Transcript: Leslie Caldwell on Cooperation and Declinations, MAIN JUSTICE (Nov. 23, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/23/transcript-leslie-caldwell-on-cooperation-and-declinations/.
249 Dylan Toker, Transcript: Leslie Caldwell on Cooperation and Declinations, MAIN JUSTICE (Nov. 23, 2015),
http://www.mainjustice.com/justanticorruption/2015/11/23/transcript-leslie-caldwell-on-cooperation-and-declinations/.
250 United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 161 (D.D.C. Feb. 5, 2015).
251 United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 166 (D.D.C. Feb. 5, 2015).
252 United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 166-67 (D.D.C. Feb. 5, 2015).
253 United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 167 (D.D.C. Feb. 5, 2015).
254 United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 167 (D.D.C. Feb. 5, 2015).
255 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGS) , 2015 U.S. Dist. LEXIS 142909, at *3 (D.D.C. Oct. 21, 2015).
256 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGS) , 2015 U.S. Dist. LEXIS 142909, at *63-64 (D.D.C. Oct. 21, 2015).
257 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGS), 2015 U.S. Dist. LEXIS 142909, at *61 (D.D.C. Oct. 21, 2015).
258 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGs), 2015 U.S. Dist. LEXIS 142909, at *31-35 (D.D.C. Oct. 21, 2015).
259 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGS) , 2015 U.S. Dist. LEXIS 142909, at *79-80 (D.D.C. Oct. 21, 2015).
260 United States v. Saena Tech Corp. & United States v. Intelligent Decisions, Inc., Nos. 14-CR-66 (EGS) &
14-CR-211 (EGS), 2015 U.S. Dist. LEXIS 142909, at *96 (D.D.C. Oct. 21, 2015).
261 U.S. Securities and Exchange Commission Press Release No. 2015-54: SEC: Companies Cannot Stifle
Whistleblowers in Confidentiality Agreements (Apr. 1, 2015).
262 Order Instituting Cease-and-Desist Proceedings, In the Matter of KBR, Inc., Rel. No. 74619, File No. 3-
16466, ¶ 6 (Apr. 1, 2015); U.S. Securities and Exchange Commission Press Release No. 2015-54: SEC: Companies
Cannot Stifle Whistleblowers in Confidentiality Agreements (Apr. 1, 2015).
263 Order Instituting Cease-and-Desist Proceedings, In the Matter of KBR, Inc., Rel. No. 74619, File No. 3-
16466, ¶¶ 7 & 9 (Apr. 1, 2015).
264 Order Instituting Cease-and-Desist Proceedings, In the Matter of KBR, Inc., Rel. No. 74619, File No. 3-
16466, ¶ 8 (Apr. 1, 2015).
– 41 –

265 Rachel Ensign, SEC Probes Companies’ Treatment of Whistleblowers, WALL ST. J., Feb. 25, 2015.
266 Rachel Ensign, SEC Charges KBR With Violating Whistleblower Protection Rule, WALL ST. J., Apr. 1, 2015.
267 U.S. Securities and Exchange Commission Press Release No. 2015-54: SEC: Companies Cannot Stifle
Whistleblowers in Confidentiality Agreements (Apr. 1, 2015).
268 See Jean Eaglesham, SEC Judge Declines to Submit Affidavit of No Bias, WALL ST. J., June 11, 2015,
http://blogs.wsj.com/moneybeat/2015/06/11/sec-judge-declines-to-submit-affidavit-of-no-bias/.
269 Jean Eaglesham, Fairness of SEC Judges Is In Spotlight, Wall St. J., Nov. 22, 2015.
270 See Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. Sept. 29, 2015); Bebo v. SEC, 799 F.3d 765 (7th Cir. Aug. 24,
2015).
271 See Duka v. SEC, No. 15 CIV 357, 2015 WL 4940083 (S.D.N.Y. Aug. 12, 2015). The SEC will appeal to the
Second Circuit. The S.D.N.Y. was not the first court to find the SEC’s use of administrative proceedings
unconstitutional. The U.S. District Court for the Northern District of Georgia also issued a preliminary injunction on
that basis in June 2015 in Hill v. SEC, No. 1:15-CV-1801-LMM, 2015 WL 4307088 (N.D. Ga. June 8, 2015).
272 Jean Eaglesham, SEC Trims Use of In-House Judges, WALL ST. J., Oct. 11, 2015.
273 See In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. Aug. 11, 2015) (“KBR II”).
274 See In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (“KBR I”).
275 See KBR II, 796 F.3d at 143-45.
276 See KBR II, 796 F.3d at 145-48.
277 See KBR II, 796 F.3d at 148-50.
278 See KBR II, 796 F.3d at 146.
279 David Green CB QC, Director of the Serious Fraud Office, Speech at the 33rd Cambridge Economic Crime
Symposium (Sept. 7, 2015), https://www.sfo.gov.uk/2015/09/07/cambridge-symposium-2015/.
280 Serious Fraud Office Press Release: SFO Opens Investigation into Soma Oil & Gas (July 31, 2015),
https://www.sfo.gov.uk/2015/07/31/sfo-opens-investigation-into-soma-oil-gas/.
281 Serious Fraud Office Press Release: City Directors Convicted in £23m Green Biofuel Trial (Dec. 5, 2014),
https://www.sfo.gov.uk/2014/12/05/city-directors-convicted-23m-green-biofuel-trial/.
282 The Crown Prosecution Service—the UK’s prosecutor of general criminal offenses and low-level, domestic
bribery—secured the first three convictions under the Bribery Act in October 2011, December 2012, and April 2013.
283 Serious Fraud Office Press Release: City Directors Convicted in £23m Green Biofuel Trial (Dec. 5, 2014),
https://www.sfo.gov.uk/2014/12/08/city-directors-sentenced-28-years-total-23m-green-biofuel-fraud/.
284 Serious Fraud Office Press Release: City directors sentenced to 28 years in total for £23m green biofuel
fraud (Dec. 8, 2014), https://www.sfo.gov.uk/2014/12/08/city-directors-sentenced-28-years-total-23m-green-biofuel-
fraud/.
285 Serious Fraud Office Press Release: UK printing company and two men found guilty in corruption trial (Dec.
22, 2014), https://www.sfo.gov.uk/2014/12/22/uk-printing-company-two-men-found-guilty-corruption-trial/.
286 Serious Fraud Office Press Release: Alstom to face further criminal charges (Apr. 16, 2015),
https://www.sfo.gov.uk/2015/04/16/alstom-to-face-further-criminal-charges/.
287 Serious Fraud Office Press Release: Guilty plea in multi-million pound energy corruption case (May. 11,
2015), https://www.sfo.gov.uk/2015/05/11/guilty-plea-in-multi-million-pound-energy-corruption-case/.
288 Serious Fraud Office Press Release: SFO agrees first UK DPA with Standard Bank (Nov. 30, 2015),
https://www.sfo.gov.uk/2015/11/30/sfo-agrees-first-uk-dpa-with-standard-ban. See also Deferred Prosecution
Agreement, Serious Fraud Office v Standard Bank PLC., Case No: U20150854 (Nov. 30, 2015),
https://www.sfo.gov.uk/cases/standard-bank-plc/.
289 David Green CB QC, Director of the Serious Fraud Office, Speech at the 33rd Cambridge Economic Crime
Symposium (Sept. 7, 2015), https://www.sfo.gov.uk/2015/09/07/cambridge-symposium-2015/.
290 UK Parliament Written Questions and Answers and Written Statements, Corruption: Written question – 9735
(Sept. 9, 2015), http://www.parliament.uk/business/publications/written-questions-answers-statements/written-
question/Commons/2015-09-09/9735/.
291 Deutscher Fussball-Bund Press Release: DFB Cooperating Fully with Public Prosecutor’s Office (Mar. 11,
2015), http://www.dfb.de/news/detail/dfb-cooperating-fully-with-public-prosecutors-office-134251/.
292 World Cup Scandal: Germany Appears to Have Bought Right to Host 2006 Tournament, SPIEGEL, Oct. 16,
2015, http://www.spiegel.de/international/world/documents-indicate-slush-fund-used-in-german-world-cup-bid-a-
1058212.html.
293 Sarah Sloat, Bilfinger Launches Probe Into Suspected Bribery Related to World Cup, WALL ST. J., Mar. 22,
2015.
294 U.S. Department of Justice Press Release: German Engineering Firm Bilfinger Resolves Foreign Corrupt
Practices Act Charges and Agrees to Pay $32 Million Criminal Penalty (Dec. 11, 2013),
http://www.justice.gov/opa/pr/german-engineering-firm-bilfinger-resolves-foreign-corrupt-practices-act-charges-and-
agrees. See also, Caroline Stauffer, Brazil comptroller says Germany’s Bilfinger seeking leniency deal, REUTERS, May
7, 2015, http://www.reuters.com/article/brazil-corruption-bilfinger-idUSL1N0XY1XY20150507.
– 42 –

295 Angeliki Koutantou, Greece wants 100 mln euros in damages from German defence firms, REUTERS, Mar.
23, 2015, http://www.reuters.com/article/greece-defence-germany-idUSL6N0WP1LN20150323.
296 Stelios Bouras, Greek Court Indicts 64 in Siemens-OTE Bribery Case, WALL ST. J., Mar. 9, 2015.
297 Siemens Hit by Corruption Charges in Greece, Norway, DEUTSCHE WELLE, Feb. 7, 2008,
http://www.dw.com/en/siemens-hit-by-corruption-charges-in-greece-norway/a-3455188.
298 Angeliki Koutantou, Greek prosecutors charge seven over army deals with Germany’s Daimler, REUTERS,
Apr. 27, 2015, http://www.reuters.com/article/us-greece-corruption-daimler-idUSKBN0NI1SA20150427.
299 WilmerHale, Cross-Border Investigations and Compliance (May 20, 2014),
https://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=17179872416.
300 European Commission, Commission Staff Working Document, Bulgaria: Technical Report (Jan 28, 2015),
http://ec.europa.eu/cvm/docs/swd_2015_9_en.pdf.
301 European Commission, Commission Staff Working Document, Romania: Technical Report (Jan. 28, 2015),
http://ec.europa.eu/cvm/docs/swd_2015_8_en.pdf.
302 European Economic and Social Committee, Proposals to fight corruption in the EU: meeting business and
civil society concerns, CCMI/132 (Sept. 16, 2015), http://www.eesc.europa.eu/?i=portal.en.ccmi-opinions.34276.
303 Law 12.846 (Aug. 1, 2013), http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2013/Lei/L12846.htm.
304 Decree 8.420 (Mar. 18, 2015), http://www.planalto.gov.br/ccivil_03/_Ato2015-
2018/2015/Decreto/D8420.htm.
305 Decree 8.420, Article 18 (Mar. 18, 2015), http://www.planalto.gov.br/ccivil_03/_Ato2015-
2018/2015/Decreto/D8420.htm.
306 Decree 8.420, Capítulo IV (Mar. 18, 2015), http://www.planalto.gov.br/ccivil_03/_Ato2015-
2018/2015/Decreto/D8420.htm.
307 Decree 8.420, Article 29 (Mar. 18, 2015), http://www.planalto.gov.br/ccivil_03/_Ato2015-
2018/2015/Decreto/D8420.htm.
308 Ordinance CGU No. 909 (Apr. 7, 2015),
http://www.cgu.gov.br/sobre/legislacao/arquivos/portarias/portaria_cgu_909_2015.pdf; Ordinance No. 910 (Apr. 7,
2015); available at http://www.cgu.gov.br/sobre/legislacao/arquivos/portarias/portaria_cgu_910_2015.pdf; Programa
de Integridade, CGU (September 2015), available at http://www.cgu.gov.br/Publicacoes/etica-e-
integridade/arquivos/programa-de-integridade-diretrizes-para-empresas-privadas.pdf.
309 Ordinance No. 910, Article 16 (Apr. 7, 2015),
http://www.cgu.gov.br/sobre/legislacao/arquivos/portarias/portaria_cgu_910_2015.pdf.
310 Caroline Stauffer, Brazil Comptroller Says Germany’s Bilfinger Seeking Leniency Deal, REUTERS, May 7,
2015.
311 SMB and Comptroller Agree on Leniency Framework, BUSINESS MONITOR ONLINE, Mar. 19, 2015.
312 Luciana Magalhaes, Brazil Holds Out Petrobras Leniency, WALL ST. J., May 23, 2015.
313 David Segal, Brazil’s Great Oil Swindle, N.Y. TIMES, Aug. 9, 2015.
314 Maria Carolina Marcello and Anthony Boadle, Brazil’s Lower House Speaker Cunha Charged in Corruption
Probe, REUTERS, Aug. 20, 2015.
315 Paulo Trevisani, Brazil House Leader Charged with Graft in Petrobras Case, WALL ST. J., Aug. 21, 2015.
316 Maria Carolina Marcello and Anthony Boadle, Brazil’s Lower House Speaker Cunha Charged in Corruption
Probe, REUTERS, Aug. 20, 2015.
317 Will Connors, Rogerio Jelmayer, and Paul Kiernan, Brazil Probe Sweeps Up Corporate Magnates, WALL ST.
J., June 19, 2015; Petrobas Scandal Spurs Executive Arrest, PRIVATE EQUITY MANAGER, July 2, 2015.
318 Blake Schmidt, Esteve’s Attorneys Say Billionaire Was Jailed for Being Rich, BLOOMBERG, Dec. 16, 2015.
319 Richard House, Petrobras Scandal Runs Rolls-Royce Through ‘Car Wash’, FIN. TIMES, Oct. 29, 2015.
320 Michelle Mark, Brazilian President Dilma Rousseff Cleared in Petrobras Corruption Scandal, INT’L BUSINESS
TIMES, Oct. 20, 2015; Reed Johnson, World News: Brazilians at Odds on Rousseff Impeachment, WALL ST. J., Dec. 5,
2015.
321 The Lokpal and Lokayuktas Act, 2013, No. 1 of 2014 (Jan. 1, 2014),
http://www.indiacode.nic.in/acts2014/1%20of%202014.pdf.
322 Rahul Rose, India considers centralised anti-corruption agency, Global Investigations Review (Dec. 8,
2015), http://globalinvestigationsreview.com/article/4733/india-considers-centralised-anti-corruption-agency.
323 Government of India, Ministry of Personnel, Public Grievances & Pensions Press Release: Public Interest
Disclosure and Protection to Persons Making the Disclosures Bill, 2010” Tabled in Lok Sabha (Aug. 26, 2010); see
also The Whistleblowers’ Protection Act, 2011, No. 17 of 2014 (May 12, 2014),
http://persmin.nic.in/DOPT/EmployeesCorner/Acts_Rules/TheWhistleBlowersProtectionAct2011.pdf.
324 See, e.g., PTI, PM Narendra Modi: Govt unsparing when it comes to punishing the corrupt, THE TIMES OF
INDIA, Nov. 18, 2015.
325 Wendy Zeldin, India: New Anti-Corruption Law, LIBRARY OF CONGRESS GLOBAL LEGAL MONITOR (Jan. 8, 2014).
326 Government of India, Ministry of Law & Justice Press Release: Proposal to move Official Amendments to
the Prevention of Corruption (Amendment) Bill, 2013 (Apr. 29, 2015),
– 43 –

http://pmindia.gov.in/en/news_updates/proposal-to-move-official-amendments-to-the-prevention-of-corruption-
amendment-bill-2013/.
327 Jatin Gandhi, Cabinet clears stronger anti-corruption Act, THE HINDU, Apr. 30, 2015.
328 The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, No. 22 of
2015 (May 27, 2015), http://www.prsindia.org/uploads/media/Black%20Money/Black%20money%20act,%202015.pdf.
329 Andy Spalding and Sundar Narayanan, Will Wal-Mart Change India?, THE FCPA BLOG (Jan. 4, 2016, 7:18
AM), http://www.fcpablog.com/blog/2016/1/4/will-wal-mart-change-india.html.
330 Parul Nanabhai, India: Draft Bill on Prevention of Bribery, TRACE TRENDS: A COMPLIANCE CONVERSATION,
http://www.traceinternational.org/india-draft-bill-on-prevention-of-bribery/; Government of India, Law Commission of
India, Report No. 258, Prevention of Bribery of Foreign Public Officials and Officials of Public International
Organisations—A Study and Proposed Amendments (Aug. 2015),
http://lawcommissionofindia.nic.in/reports/Report258.pdf.
331 Parul Nanabhai, India: Draft Bill on Prevention of Bribery, TRACE TRENDS: A COMPLIANCE CONVERSATION,
http://www.traceinternational.org/india-draft-bill-on-prevention-of-bribery/; Government of India, Law Commission of
India, Report No. 258, Prevention of Bribery of Foreign Public Officials and Officials of Public International
Organisations—A Study and Proposed Amendments (Aug. 2015),
http://lawcommissionofindia.nic.in/reports/Report258.pdf.
332 FP Staff, Vyapam Scam: Supreme Court transfers case to CBI, issues notice to MP governor Yadav, FIRST
POST, July 9, 2015.
333 Manu Joseph, Vyapam Corruption Case Mystifies India, N.Y. TIMES, July 8, 2015.
334 Rishi Iyengar, Indian Political Leaders Sonia and Rahul Gandhi Due in Court Over Graft Allegations, TIME
MAGAZINE, Dec. 18, 2015.
335 TNN, Sonia Gandhi, Rahul get bail in National Herald Case, THE TIMES OF INDIA, Dec. 19, 2015.
336 Zou Wei, Yang Weihan, & Li Pengxiang, First Trial of Jiang Jiemin Case: He Had Caused Grave Loss to the
State, XINHUA DAILY TELEGRAPH (Apr. 14, 2015) http://news.xinhuanet.com/mrdx/2015-04/14/c_134148983.htm; Chris
Buckley, Chinese Official Who Ran Oil Giant Admits Bribetaking, Court Reports, N.Y. TIMES, Apr. 13, 2015.
337 Former PetroChina chairman Jian Jiemin sentenced to 16 years in Prison, CHINA DAILY EUROPEAN EDITION,
Oct. 12, 2015.
338 Former PetroChina chairman Jian Jiemin sentenced to 16 years in Prison, CHINA DAILY EUROPEAN EDITION,
Oct. 12, 2015.
339 Aibing Guo, Former PetroChina Chairman Sentenced to 16 Years for Corruption, BLOOMBERG, (Oct. 12,
2015), http://www.bloomberg.com/news/articles/2015-10-12/former-petrochina-chairman-sentenced-to-16-years-for-
corruption.
340 Li Nan, Lawyer Filed Complaint About Mead Johnson, Saying It Should Be Punished by The Chinese Side,
JING HUA TIMES (Aug. 3, 2015), http://news.xinhuanet.com/food/2015-08/03/c_128085689.htm.
341 U.S. Securities and Exchange Commission Press Release No. 2015-154: SEC Charges Mead Johnson
Nutrition with FCPA Violations (July 28, 2015).
342 863 Returned to China Under the “Sky Net” Campaign, 18 In The List of Top 100 Fugitives Hunted Down,
QU JING DAILY ( Dec. 13, 2015), http://news.gmw.cn/newspaper/2015-12/13/content_110187786.htm.
343 863 Returned to China Under the “Sky Net” Campaign, 18 In The List of Top 100 Fugitives Hunted Down,
QU JING DAILY (Dec. 13, 2015), http://news.gmw.cn/newspaper/2015-12/13/content_110187786.htm; China releases
wanted list for worldwide fugitive hunt, XINHUANET (Apr. 22, 2015), http://news.xinhuanet.com/english/2015-
04/22/c_134174877.htm.
344 http://news.sina.com.cn/o/2015-09-08/doc-ifxhqtsx3610177.shtml.
345 http://opinion.caixin.com/2015-03-17/100791918.html.
346 Richard L. Cassin, Canada Charges SNC-Lavalin for Libya Bribes, FCPA BLOG (Feb. 19, 2015, 11:28 AM),
http://www.fcpablog.com/blog/2015/2/19/canada-charges-snc-lavalin-for-libya-bribes.html.
347 Sunny Freeman, RCMP Charges SNC-Lavalin in Libya Corruption Probe, HUFFINGTON POST CANADA (Feb.
19, 2015), http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/snc-lavalin-fraud-case-
with-links-to-libya-put-off-until-february/article26842703/.
348 SNC-Lavalin Fraud Case with Links to Libya Put Off Until February, THE GLOBE AND MAIL (Oct. 16, 2015),
http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/snc-lavalin-fraud-case-with-links-to-
libya-put-off-until-february/article26842703/.
349 SNC-Lavalin Press Release: SNC-Lavalin Arrives at Settlement Agreement with the African Development
Bank Group (Oct. 1, 2015).
350 Pete Evans & Dave Seglins, MagIndustries Probed by RCMP over Bribery Allegations in Congo, CBCNEWS
(May 29, 2015), http://www.cbc.ca/news/business/magindustries-probed-by-rcmp-over-bribery-allegations-in-congo-
1.3091035.
351 Peter Koven, MagIndustries Corp Reveals Evidence that Subsidiaries Allegedly Paid Major Bribes in
Republic of Congo, FINANCIAL POST (June 17, 2015) http://business.financialpost.com/news/mining/magindustries-
reveals-evidence-that-company-paid-major-bribes-in-republic-of-congo.
– 44 –

352 Barrie McKenna, Ottawa Working to Modify Strict Anti-Corruption Rules, THE GLOBE AND MAIL, Jan. 27, 2015.
353 Barrie McKenna, Ottawa Working to Modify Strict Anti-Corruption Rules, THE GLOBE AND MAIL, Jan. 27, 2015.
354 Government of Canada’s Integrity Regime, PUBLIC WORKS AND GOVERNMENT SERVICES CANADA,
http://www.tpsgc-pwgsc.gc.ca/ci-if/politique-policy-eng.
355 Waithera Junghae, New Canadian Rules Are an Improvement but DPAs Remain the Best Incentive, GLOBAL
INVESTIGATIONS REVIEW, July 14, 2015.
356 Ben Dipietro, The Morning Risk Report: Canada Revises Integrity Policy, WALL ST. J., July 16, 2015.
357 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 1, 35,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
358 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2014 30,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-
1412626296780/INT_Annual_Update_FY14_WEB.pdf.
359 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 1, 35,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
360 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 2,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
361 World Bank Office of Suspension and Debarment, Notice of Uncontested Sanctions Proceedings, N.C.
Sanitors & Service Corporation; Mr. James Strother (Dec. 16, 2014)
http://siteresources.worldbank.org/EXTOFFEVASUS/Resources/3601045-
1371577728750/Notice_of_Uncontested_Sanctions_Proceedings_Case_287.pdf.
362 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 2,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
362 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 2,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
363 World Bank Group Integrity Vice Presidency, Annual Update: Fiscal Year 2015 2,
http://siteresources.worldbank.org/EXTDOII/Resources/588920-1444050544186/INT_FY15_Annual_Update.pdf.
364 World Bank Press Release: New World Bank Procurement Framework Approved (July 21, 2015),
http://www.worldbank.org/en/news/press-release/2015/07/21/world-bank-procurement-framework.
365 World Bank, Procurement in World Bank Investment Project Financing, Phase II: The New Procurement
Framework (June 11, 2015), https://consultations.worldbank.org/Data/hub/files/consultation-template/procurement-
policy-review-consultationsopenconsultationtemplate/phases/phase_ii_the_new_procurement_framework_-
_board_paper.pdf.
366 Q&A with DOJ Fraud Chief Andrew Weissmann, TRACE TRENDS: A COMPLIANCE CONVERSATION
(Jan. 26, 2016), http://www.traceinternational.org/qa-with-doj-fraud-chief-andrew-weissmann.

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