Page 110 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

House, National Security Strategy 38 (2010), available at at https://www.justice.gov/criminal-fraud/file/1072456/
https://obamawhitehouse.archives.gov/sites/default/files/ download; Complaint, SEC v. Tyco Int’l Ltd., 06-cv-2942 (S.D.N.Y.
rss_viewer/national_security_strategy.pdf. 2006), ECF No. 1 [hereinafter SEC v. Tyco Int’l], available at
http://www.sec.gov/litigation/complaints/2006/comp19657.
7 See, e.g., Int’l Chamber of Commerce, et al., Clean pdf; Complaint, SEC v. Willbros Group, Inc., No. 08-cv-1494 (S.D.
Business Is Good Business: The Business Case Against Tex. 2008), ECF No. 1 [hereinafter SEC v. Willbros], available at
Corruption (2008), available at https://d306pr3pise04h. http://www.sec.gov/litigation/complaints/2008/comp20571.
cloudfront.net/docs/news_events%2F8.1%2Fclean_business_ pdf.
is_good_business.pdf; World Health Org., Reinforcing the
Focus on Anti-corruption, Transparency and Accountability 11 See United States v. Ahsani, supra note 9 (engaging
in National Health Policies, Strategies and Plans (2019), in bid-rigging); Plea Agreement, United States v. Bridgestone
available at https://apps.who.int/iris/bitstream/hand Corp., No. 11-cr-651 (S.D. Tex. 2011), ECF No. 21, available
le/10665/326229/9789241515689-eng.pdf?ua=1. at https://www.justice.gov/sites/default/files/criminal-fraud/
legacy/2011/10/18/10-05-11bridgestone-plea.pdf.
8 See, e.g., The Corruption Eruption, Economist
(Apr. 29, 2010), available at http://www.economist.com/ 12 See S. Rep. No. 95-114, at 6; H.R. Rep. No. 95-640,
node/16005114 (“The hidden costs of corruption are almost at 4; see also A. Carl Kotchian, The Payoff: Lockheed’s 70-Day
always much higher than companies imagine. Corruption Mission to Tokyo, Saturday Rev., Jul. 9, 1977, at 7.
inevitably begets ever more corruption: bribe-takers keep
returning to the trough and bribe-givers open themselves 13 U.S. Sec. and Exchange Comm., Report of the
up to blackmail.”); Daniel Kaufmann and Shang-Jin Wei, Securities and Exchange Commission on Questionable and
Does “Grease Money” Speed Up the Wheels of Commerce? 2 Illegal Corporate Payments and Practices 2-3 (1976).
(Nat’l Bureau of Econ. Research, Working Paper No. 7093,
1999), available at http://www.nber.org/papers/w7093.pdf 14 See H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114,
(“Contrary to the ‘efficient grease’ theory, we find that firms at 3-4.
that pay more bribes are also likely to spend more, not less,
management time with bureaucrats negotiating regulations, 15 H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-
and face higher, not lower, cost of capital.”). 114, at 4. The Senate Report observed, for instance, that
“[m]anagements which resort to corporate bribery and
9 For example, in a number of recent enforcement the falsification of records to enhance their business
actions, the same employees who were directing or controlling reveal a lack of confidence about themselves,” while citing
the bribe payments were also enriching themselves at the the Secretary of the Treasury’s testimony that “‘[p]aying
expense of the company. See, e.g., Criminal Information, bribes—apart from being morally repugnant and illegal in
United States v. Cyrus Allen Ahsani, et al., No. 19-cr-147 (S.D. Tex. most countries—is simply not necessary for the successful
Mar. 4, 2019), ECF No. 1 [hereinafter United States v. Ahsani] conduct of business here or overseas.’” Id.
(paying kickbacks to executives who were involved in bribe
payments), available at https://www.justice.gov/criminal- 16 See S. Rep. No. 100-85, at 46 (1987) (recounting
fraud/case/file/1266861/download; Criminal Information, FCPA’s historical background and explaining that “a strong
United States v. Colin Steven, No. 17-cr-788 (S.D.N.Y. Dec. 21, antibribery statute could help U.S. corporations resist corrupt
2017), ECF No. 2 [hereinafter United States v. Steven] (receiving demands . . . .”) [hereinafter S. Rep. No. 100-85].
kickbacks related to certain corrupt payments made by
Embraer, S.A.), available at https://www.justice.gov/criminal- 17 S. Rep. No. 95-114, at 7.
fraud/file/1021856/download; Criminal Information, United
States v. Robert Zubiate, No. 17-cr-591 (S.D. Tex. Oct. 6, 2017), 18 Omnibus Trade and Competitiveness Act of 1988,
ECF No. 1 [hereinafter United States v. Zubiate] (receiving Pub. L. No. 100- 418, § 5003, 102 Stat. 1107, 1415-25 (1988);
kickbacks related to certain corrupt payments made by SBM see also H.R. Rep. No. 100-576, at 916-24 (1988) (discussing
Offshore, N.V. in Brazil), available at https://www.justice.gov/ FCPA amendments, including changes to standard of liability
criminal-fraud/file/1017281/download; Complaint, SEC v. for acts of third parties) [hereinafter H.R. Rep. No. 100-576].
Peterson, No. 12-cv-2033 (E.D.N.Y. 2012), ECF No. 1, available
at http://www.sec.gov/litigation/complaints/2012/comp- 19 See Omnibus Trade and Competitiveness Act of 1988,
pr2012-78.pdf; Criminal Information, United States v. Peterson, § 5003(d). The amended statute included the following
No. 12-cr-224 (E.D.N.Y. 2012), ECF No. 7 [hereinafter United directive: “It is the sense of the Congress that the President
States v. Peterson], available at https://www.justice.gov/sites/ should pursue the negotiation of an international agreement,
default/files/criminal-fraud/legacy/2012/04/26/petersong- among the members of the Organization of Economic
information.pdf; Plea Agreement, United States v. Stanley, Cooperation and Development, to govern persons from
No. 08-cr-597 (S.D. Tex. 2008), ECF No. 9 [hereinafter United those countries concerning acts prohibited with respect to
States v. Stanley], available at https://www.justice.gov/sites/ issuers and domestic concerns by the amendments made
default/files/criminal-fraud/legacy/2012/03/19/09-03- by this section. Such international agreement should include
08stanley-plea-agree.pdf; Plea Agreement, United States a process by which problems and conflicts associated
v. Sapsizian, No. 06-cr-20797 (S.D. Fla. 2007), ECF No. 42 with such acts could be resolved.” Id.; see also S. Rep.
[hereinafter United States v. Sapsizian], available at https:// No. 105-277, at 2 (1998) (describing efforts by Executive
www.justice.gov/sites/default/files/criminal-fraud/ Branch to encourage U.S. trading partners to enact legislation
legacy/2011/02/16/06-06-07sapsizian-plea.pdf. similar to FCPA following 1988 amendments) [hereinafter S.
Rep. No. 105-277].
10 See, e.g., Criminal Information, United States v. Société
Générale S.A., No. 18-cr-253 (E.D.N.Y. May 18, 2018), ECF 20 Convention on Combating Bribery of Foreign Public
No. 4 [hereinafter United States v. Société Générale], available Officials in International Business Transactions art. 1.1, Dec.
102