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The Foreign Corrupt Practices Act: Compliance, Investigations and Enforcement

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Martin J. Weinstein, Robert J. Meyer, Jeffrey D. Clark


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Passed in the wake of the Watergate Scandal and enforced only sporadically for two decades, the Foreign Corrupt Practices Act has emerged as a potent and feared law enforcement tool.  In recent years, U.S. authorities have zealously enforced the FCPA, seeking historically high fines for corporations and significant jail time for executives.

The Foreign Corrupt Practices Act: Compliance, Investigations and Enforcement book and CD covers all aspects of the FCPA.  It methodically explains its stringent accounting and recordkeeping requirements, the practices for which corporations and individual officers and directors can be held civilly and criminally responsible, essential steps for compliance and mitigation of penalties, and other vital subjects.

Identify the Red Flags of Foreign Corrupt Practices Risk

When will American companies and their officers and directors be held responsible for the practices of non-U.S. subsidiaries?  What constitutes “knowledge” and “corrupt intent”?  How do the internal controls needed for compliance with the FCPA differ from those needed for compliance with other acts, such as Sarbanes-Oxley?  This important new book answers these questions and many others.

Topics include:
 
·  When the antibribery provisions apply, and the exceptions and affirmative defenses
·  Book- and recording-keeping procedures and internal controls required by the FCPA accounting provisions
·  Applicability of the FCPA to persons outside the United States
·  Civil and criminal liability of individuals
·  Key elements the DoJ and other regulators look for in evaluating an organization’s compliance program
·  Due diligence, training, and contractual safeguards to minimize liability for improper acts by local representatives
·  DoJ’s FCPA Opinion Procedure and the pros and cons of seeking an opinion
·  Liability for the pre- or post-acquisition conduct of an acquisition or investment target
·  Conducting effective FCPA internal investigations and how to disclose the findings
·  Multi-jurisdictional investigations, including gathering evidence and compelling testimony overseas
·  Global anti-corruption regulation, with a detailed look at Germany and China
·  A guide to the United Kingdom Bribery Act 2010
 
Indispensable Advice on Avoiding Missteps and Minimizing Liability
 
In an increasingly global economy, it is easier than ever for corporations, officers and directors to be blindsided by the consequences of improper actions occurring far away.  The authors, expert practitioners specializing in FCPA cases, reveal numerous hidden pitfalls and provide helpful guidance for attorneys dealing with almost any FCPA-related eventuality.  Whether you are exploring when the "facilitating payment exception" applies or what to do with the results of an internal investigation, look no further than this valuable book.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Page Count: 800
  • ISBN: 978-1-58852-182-8
  • Pub#/SKU#: 719

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  • Martin J. Weinstein
Martin J. Weinstein is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and leads the Compliance & Enforcement Practice Group in Washington, D.C. A former Assistant U.S. Attorney, he was lead prosecutor in the Lockheed case, and has since defended many of the most complex FCPA cases of the last 25 years. In 1995, the Attorney General presented Mr. Weinstein with The John Marshall Award for outstanding legal achievement in trial and litigation.


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  • Robert J. Meyer
Robert J. Meyer is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and a member of the Compliance & Enforcement Practice Group in Washington, D.C. Mr. Meyer was a federal prosecutor in the U.S. Attorneys Office and hte U.S. Department of Justice’s Public Integrity Section for over ten years, where he conducted several of the Department of Justice’s most high profile investigations and prosecutions, including two presidential investigations and several prosections of federal and state officials for bribery. He has conducted numerous domestic and international internal corporate investigations and regularly counsels corporations on compliance and enforcement.


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  • Jeffrey D. Clark
Jeffrey D. Clark is a partner in the Litigation Department of Willkie Farr & Gallagher LLP and a member of the Compliance & Enforcement Practice Group in Washington, D.C. A former Assistant U.S. Attorney in the District of New Jersey, where he was Deputy Chief of the Special Prosecutions Division and Deputy Chief of the Criminal Division, he was lead trial counsel in numerous high-profile public corruption prosecutions. He serves on the Board of Directors of TRACE International, an association of multinational companies dedicated to enhancing antibribery compliance, and is a past co-chair of the ABA Section of International Law Anti-Corruption Committee.

Summary Table of Contents
CHAPTER 1
An Overview and History of the FCPA
§ 1.01  Introduction
§ 1.02  Overview of the FCPA
§ 1.03  History of the FCPA
CHAPTER 2
The Antibribery Provisions of the FCPA
§ 2.01  Overview
§ 2.02  Who Is Covered?
§ 2.03  Jurisdiction 
§ 2.04  Anything of Value
§ 2.05  Who Qualifies as a “Foreign Official” or Other Covered Recipient?
§ 2.06  What Constitutes Corrupt Intent?
§ 2.07  How is the “Business Nexus” Requirement Established?
§2.08  The FCPA’s Exception and Affirmative Defenses
§ 2.09  Statute of Limitations
§ 2.10  Penalties and Enforcement
CHAPTER 3
The FCPA’s Accounting Provisions
§ 3.01  Introduction
§ 3.02  Who Is Covered?
§ 3.03  Books and Records
§ 3.04  Internal Controls
§ 3.05   Penalties and Enforcement
CHAPTER 4
Issues Related to Non-U.S. Companies
§ 4.01  Introduction
§ 4.02  Direct Liability of Non-U.S. Companies
§ 4.03  Liability of U.S. Companies for the Acts of Non-U.S. Subsidiaries
§4.04  Liability against Non-U.S. Companies Under Secondary Liability Theories
CHAPTER 5
Liability of Individuals
§ 5.01  Introduction
§ 5.02  Antibribery Liability
§ 5.03  Liability for Books and Records and Internal Controls Violations
§ 5.04  Conspiracy and Aiding and Abetting Liability
§ 5.05  Liability of Foreign Officials Under the FCPA
CHAPTER 6
Complying with the FCPA: The Basics
§ 6.01  Introduction
§ 6.02  Guidance on Compliance Programs
§ 6.03  Elements of an Effective FCPA Compliance Program 
§ 6.04  Travel and Entertainment
§ 6.05  Per Diems
§ 6.06  Gifts
§ 6.07  Facilitating Payments
§ 6.08  Extortion
§ 6.09  Charitable Contributions
§ 6.10  Political Donations
§ 6.11  FCPA Compliance Audits
§ 6.12  The DOJ’s FCPA Opinion Procedure
CHAPTER 7
Complying with the FCPA: Third-Party Relationships
§ 7.01  Introduction
§ 7.02   Overview of Third-Party Management
§ 7.03  Third-Party Relationships and Related FCPA Risks
§ 7.04   Due Diligence
§ 7.05    Contractual Safeguards
§ 7.06   Training
§ 7.07   Monitoring
§ 7.08  Special Considerations When Using Government Officials or State-Owned Entities As Third Parties
CHAPTER 8
Complying with the FCPA:  Mergers, Acquisitions and Investment Transactions
§ 8.01  Introduction
§ 8.02  FCPA Risks in Cross-Border Transactions 
§ 8.03  Cross Border Mergers & Acquisitions
§ 8.04  Non-U.S. Investments
§ 8.05  Minority Interest Investments
§ 8.06  Board Service
CHAPTER 9
Conducting Effective FCPA Internal Investigations
§ 9.01  Introduction
§ 9.02  Preliminary Considerations
§ 9.03  Gathering and Reviewing Relevant Documents and Other Data
§ 9.04  Employee and Third-Party Interviews
§ 9.05  Reports of Investigation
§ 9.06  Interacting with External Auditors and Other Outside Constituents
§ 9.07  Responding to Investigative Findings
§ 9.08  Disclosure to Enforcement Authorities
CHAPTER 10
U.S. Government Enforcement of the FCPA
§ 10.01  Introduction
§ 10.02  Criminal and Civil Enforcement by DOJ
§ 10.03  Civil Enforcement by the SEC
§ 10.04  Corporate Compliance Monitors
§ 10.05  Other Statutes in the DOJ’s Arsenal
§ 10.06  Preparing to Litigate Against the Government
§ 10.07   Collateral Consequences of an FCPA Enforcement Action
CHAPTER 11
Multi-Jurisdictional Investigations
§ 11.01  Cross-Border Evidence Sharing
§11.02  Extraterritorial Evidence Taking
§11.03  Admissibility of Foreign Evidence
§11.04  Privilege Issues
§11.05  Coordinating Cooperation and Settlement over Multiple Jurisdictions
CHAPTER 12
Global Anticorruption Enforcement
§12.01  Introduction
§12.02  International Anticorruption Efforts
§12.03  Selected National Enforcement Regimes
CHAPTER 13 
The United Kingdom Bribery Act 2010
§ 13.01  Overview
§ 13.02  Jurisdiction under the Bribery Act
§ 13.03  Financial or Other Advantage
§ 13.04  The Offense of Bribing Another Person
§ 13.05  The Offense of Being Bribed
§ 13.06  Bribery of a Foreign Public Official
§ 13.07  Failure of Commercial Organizations to Prevent Bribery
§ 13.08  Facilitation Payments
§ 13.09  Liability of Senior Officers for Company Offenses
§ 13.10  Time Period to Bring Bribery Act Prosecutions
§ 13.11  Enforcement and Penalties