Latest FCPA Actions Target Foreign Companies and Promulgate New Compliance Guidelines

The settlements and guilty pleas, which involved companies in the international transport business and the oil and gas business, are notable for several reasons. First, several of the settlements involved non-U.S. companies located in Switzerland, France, the Cayman Islands, and Nigeria. These corporations were charged with a variety of offenses, including violations of the anti-bribery provisions and the books and records provisions of the FCPA, or with conspiracy and aiding and abetting those violations. Two corporations, one a U.S. corporation and the other a French corporation, pleaded guilty. Second, the relevant non-prosecution, deferred prosecution and plea agreements also included a document entitled "Corporate Compliance Program," to which the corporations agreed to adhere. This document provides an important outline of the government’s expectations with respect to an effective anti-bribery program.

Actions Against Foreign Corporations
While the FCPA generally applies by its terms to U.S. "issuers" of securities, U.S. "domestic concerns" or U.S. "persons", these cases demonstrate that even foreign companies can run afoul of its provisions in a variety of ways. Here many of the allegations relate to bribery of foreign customs officials, often not by the company charged but by an affiliate. Moreover, the allegations of books and records violations deal with false record entries, not only by the bribing company but also by its U.S. parent, or by its beneficiary customers. In addition, the government here has applied both conspiracy and aiding and abetting charges to widen its application of FCPA provisions.

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