BCR Journal

From June through early September 2020, our offices will be gutted, expanded and rebuilt. Personal meetings are limited. Throughout our office building, masks and other COVID precautions are required.

Practically speaking, your attorney can guide you on virtual meetings and other arrangements. We have been working successfully despite the COVID limitations and the ongoing construction.

The New Foreign Corrupt Practices Guide

In Volume 36, Issue 7 of the International Enforcement Law Reporter, Bruce Zagaris discusses the U.S. Department of Justice and Securities & Exchange Commission Issue second Edition of FCPA Resource Guide: Download PDF.

On July 3, 2020, the Department of Justice and the Securities and Exchange Commission released the 133-page A Resource Guide to the U.S. Foreign Corrupt Practices Act (Second Edition 2020). The Guide contains detailed information and analysis regarding the Foreign Corrupt Practices Act (FCPA) and related enforcement. It provides useful information to the public, including practitioners and enterprises of all shapes and sizes--from small businesses transacting abroad for the first time to multinational corporations with subsidiaries around the world.

The Guide addresses a wide variety of topics, including who and what are covered by the FCPA’s anti-bribery and accounting provisions; the definition of a "foreign official"; the jurisdictional reach of the FCPA; types of proper and improper payments; application of successor liability in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context.

The Guide provides a very readable and comprehensive guide to how the U.S. government interprets the FCPA. It contains all the latest cases, and law enforcement policies, such as the DOJ FCPA Corporate Enforcement Policy; Criminal Division's Evaluation of Corporate Compliance Programs; and the Selection of Monitors in Criminal Division matters. The DOJ and SEC state the Guide is "non-binding, informal, and summary in nature." Nevertheless, it will be a useful starting point for many practitioners and policy professionals. Following the June 1, 2020 issuance by the DOJ of its revision of its guidance on the Evaluation of Corporate Compliance Programs, which also emphasizes the need to regularly reassess the risks to an entity and update the compliance program accordingly companies may want to consider conducting the reassessment of both the overall compliance programs and especially its FCPA/anti-corruption component.

If you have questions about the matter, please contact Bruce Zagaris (BZagaris@BCR-DC.COM), who regularly represents domestic and foreign clients in enforcement matters.

Success in Sovereign Immunity Litigation

BCR recently represented several amici--including Mexico, Cyprus, and Italy--in the appeal of Barnet v. Ministry of Culture and Sports of the Hellenic Republic (Greece), a case involving an ownership dispute of an ancient horse figurine and Greece's sovereign immunity. BCR's amicus brief focused on the patrimony laws of foreign countries and the impact of those laws on the sovereign immunity question. The plaintiffs had argued that Greece was not immune from the jurisdiction of the U.S. court because Greece acted as a commercial actor when it sent a demand letter to have the figurine withdrawn from auction.

On June 9, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision agreeing with Greece and the amici. The Court found Greece immune from the jurisdiction of the U.S. court because Greece's demand letter was not commercial activity but was instead an attempt to enforce its patrimony laws.

If you have questions about the matter, please contact Laina Lopez (LCL@BCR-DC.COM), who regularly represents foreign states in U.S. courts nationwide.