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DOJ, SEC update FCPA handbook – what it means for whistleblowers

The DOJ and SEC’s recent release of an updated edition of “A Resource Guide to the U.S. Foreign Corrupt Practices Act” affirms a broad application of agency anti-corruption enforcement powers, while indirectly responding to criticism of their enforcement practices.

The update solidifies DOJ and SEC policy positions with respect to the FCPA and indirectly places whistleblowers in a critical position to further federal anti-corruption enforcement priorities.

Whistleblowers with insider insights into company accounting information are especially important to help stop corrupt practices abroad.

The resource guide emphasizes the FCPA’s accounting provisions, which require companies to maintain accurate and transparent financial records and accounting oversight. In many FCPA cases, the SEC charges companies with violating the anti-corruption law by failing to follow the accounting provisions, even when it doesn’t allege payments to foreign officials.

The updated guide suggests that the SEC holds an expansive view of its enforcement powers with regards to internal controls, despite past criticism from defense lawyers who claim that enforcement of the accounting provisions was inconsistent. The guide cautions companies that their internal accounting controls must reflect their operational realities on the ground.

The guide also contains updates regarding confidential reporting, periodic testing and reviews of compliance programs, and policies for managing mergers and acquisitions internationally.

 

Overview of recent FCPA cases

There are various ways that FCPA violations come to the attention of SEC staff, including through information supplied by whistleblowers and self-disclosures by companies.

DOJ’s and the SEC’s anti-corruption enforcement efforts have tackled complex, large-scale fraud all over the world. In recent years, they have achieved numerous record-setting FCPA settlements.

  • European aerospace company Airbus paid a staggering $3.9 billion earlier this year to settle bribery charges with French, British, and US authorities.
  • Brazil’s state energy concern paid $1.78 billion in 2018 to resolve FCPA charges stemming from bribes to politicians and political parties in Brazil.
  • Swedish telecom company Ericsson paid $1 billion in 2019 to settle charges that it violated several FCPA provisions.
  • Another Swedish telecom company, Telia Company, paid over $1 billion in 2017 to settle corruption charges with US, Swedish and Dutch authorities.

Because of the protections and anonymity provisions afforded to whistleblowers under the Dodd-Frank Act, the identities of FCPA whistleblowers are rarely disclosed in connection with the cases of foreign corruption they helped stop.

However, the SEC has noted when whistleblower awards are made to those living in other countries. The largest SEC reward to an international whistleblower was made to an anonymous Phillips & Cohen client, who was awarded more than $32 million for the information he gave to the SEC and the assistance he and our firm provided in the case.

 

Whistleblowers and the FCPA

Whistleblowers with information about bribery of foreign officials are essential to vigorous enforcement of the FCPA. They are often company or industry insiders who have access to information and evidence demonstrating that companies paid bribes to foreign officials.

The SEC’s whistleblower program welcomes reports from whistleblowers worldwide. They need not be US citizens or reside in the US to report violations of the FCPA. Like other SEC whistleblowers, they are eligible for whistleblower rewards, and the information they provide to the SEC is confidential.

Before deciding whether to become a whistleblower, it is a good idea to discuss the benefits and risks with an experienced whistleblower lawyer.

If you would like to discuss an FCPA violation or other securities law violation and the potential for a successful whistleblower case, please contact Phillips & Cohen for a free, confidential review.

 

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