Most experienced FCPA practitioners are familiar with the basics of FCPA training. Lessons should cover enforcement trends, the elements of the bribery and books and records/internal controls offenses, common forms of FCPA-prohibited activity, the consequences of non-compliance, industries and sectors under the enforcement microscope, and the specifics of the company’s own compliance program. Trainers should tell sensational bribery stories from prior enforcement actions to capture the audience’s attention. For foreign audiences, trainings should be conducted in local languages. Trainers should seek to make trainings fun (FCPAméricas haspreviously suggested strategies for how to do this).
But other issues often get missed in FCPA trainings. These can be some of the most impactful for encouraging an audience’s adherence to compliance. Here is a list of “don’t forgets” for your FCPA training program:
1. Explain how violations are discovered. When learning about the FCPA, trainees often think that the chances of bribery being discovered by enforcement officials, even if it is occurring within their company, are minimal. It is important to make clear that there are numerous ways that these issues can come to light. Here is a list of them.
2. Describe how individuals are liable. Attendees of trainings tend to pay more attention when they realize that they can be individually liable for FCPA violations. They can even go to jail. This is the case for foreigners too. Indeed, U.S. enforcement officials have not shied away from spreading the jurisdictional net widely. FCPAméricas has provided insights into ways that FCPA enforcement can reach non-U.S. persons here.
3. Show how various company actors have a role to play in compliance. Compliance is not just about the General Counsel or Chief Compliance Officer. Individuals throughout the company have important roles to play. The more the trainee understands these multiple responsibilities, the more he or she begins to appreciate them. FCPAméricas has listed them here.
4. Remind audiences that corruption exists in the United States too. Foreign audiences are known sometimes to take offense at the fact that the FCPA targets only corruption outside of the United States. During trainings, they often make the point that corruption exists in our country too. They are right. Because of this, it is helpful for trainers to confront the issue head on at the beginning of the training. Explain that there are other laws in the United States addressing domestic corruption. Show pictures of U.S. officials being carried away in handcuffs for domestic bribery. Talk about how some forms of “lobbying” in the United States are perceived by many as institutionalized corruption. And then explain that the purpose of the FCPA training is to focus specifically on compliance with one particular type of corruption law, a law that addresses foreign bribery.
5. Inform audiences that the FCPA is not alone. To show the reality that compliance is not just about the FCPA, it is helpful to describe the web of international anti-corruption laws, treaties, and enforcement agencies currently in place and at work. By summarizing the local anti-bribery laws in the jurisdictions where the company operates, the trainer sends the message that compliance is relevant, not only to U.S. authorities, but throughout the world. It underscores the fact that enforcement threats can come from many different directions, not just the U.S. Department of Justice or the U.S. Securities and Exchange Commission.
Matteson Ellis serves as Special Counsel to the FCPA and International Anti-Corruption practice group of Miller & Chevalier Chartered in Washington, DC. He is also founder and principal of Matteson Ellis Law PLLC, a law firm focusing on FCPA compliance and enforcement. He has extensive experience in a broad range of international anti-corruption areas. Previously, he worked with the anti-corruption and anti-fraud investigations and sanctions proceedings unit at The World Bank.
Mr. Ellis has helped build compliance programs associated with some of the largest FCPA settlements to date; performed internal investigations in more than 20 countries throughout the Americas, Asia, Europe and Africa considered “high corruption risk” by international monitoring organizations; investigated fraud and corruption and supported administrative sanctions and debarment proceedings for The World Bank and The Inter-American Development Bank; and is fluent in Spanish and Portuguese.
Mr. Ellis focuses particularly on the Americas, having spent several years in the region working for a Fortune 50 multinational corporation and a government ethics watchdog group. He regularly speaks on corruption matters throughout the region and is editor of the FCPAméricas Blog.
He has worked with every facet of FCPA enforcement and compliance, including legal analysis, internal investigations, third party due diligence, transactional due diligence, anti-corruption policy drafting, compliance training, compliance audits, corruption risk assessments, voluntary disclosures to the U.S. government and resolutions with the U.S. government. He has conducted anti-corruption enforcement and compliance work in the following sectors: agriculture, construction, defense, energy/oil and gas, engineering, financial services, medical devices, mining, pharmaceuticals, gaming, roads/infrastructure and technology.
Mr. Ellis received his law degree, cum laude, from Georgetown University Law Center, his masters in foreign affairs from Georgetown’s School of Foreign Service, and his B.A. from Dartmouth College. He co-founded and serves as chairman of the board of The School for Ethics and Global Leadership in Washington, D.C. He is a member of the District of Columbia, Texas, New York, and New Jersey bar associations.