DOJ and SEC Release Second Edition to FCPA Resource Guide

The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) quietly released updated guidance on the Foreign Corrupt Practices Act (FCPA) before the Fourth of July holiday weekend.  Entitled A Resource Guide to the U.S. Foreign Corrupt Practices Act, Second Edition[1] (“Guide”), the Guide is the first update to the original document published in November 2012.

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New DOJ Expectations: Does Your Corporate Compliance Measure Up?


On June 1, 2020, the Department of Justice (“DOJ”) Criminal Division released an update to its “Evaluation of Corporate Compliance Programs” guidance for federal prosecutors, its first change since April 2019. Although the update did not fundamentally alter the structure of the guidance, the revisions directly impact how companies should assess and monitor their compliance programs. Specifically, companies should note the update’s emphasis on greater dynamism in corporate compliance programs.

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Nursing Homes Face Scrutiny Following Financial Assistance

Release of $4.9 billion in financial assistance for nursing homes, which care for high risk seniors, is not all good news.  Already facing difficult times, skilled nursing facilities will receive even more scrutiny to account for the money.  Read tips here from former prosecutors Marisa Darden, David Maria, and Tom Zeno.

Lying in Wait: Cybercriminals’ COVID-19 Tactic

As business slowly and cautiously reopens, cybercriminals lie in wait.  A case study into a massive unemployment insurance fraud shows that cybercriminals patiently hunt for  lucrative opportunities to strike.  For that reason, companies reopening should consider conducting a cyber-audit to identify their cyber vulnerabilities and thwart cybercriminals lying in wait.

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Responding to Financial Crime Risks during COVID-19

Over the past few months, numerous organizations and agencies—including the intergovernmental Financial Action Task Force, UK Financial Conduct Authority, Dubai Financial Services Authority, and U.S. Financial Crimes Enforcement Network—have stressed the need to preserve the integrity and security of the global payments system during and after the pandemic.

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On May 15, 2020, the Small Business Administration (SBA) released the long-awaited Paycheck Protection Program (PPP) Loan Forgiveness Application.  Congress established the PPP as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the PPP is a key pillar in the Government’s response to the economic consequences of the COVID-19 pandemic.  The PPP allows eligible businesses to borrow up to ten weeks of payroll costs on favorable terms from private lenders, with the balance of the loan guaranteed by the SBA.

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Sanctions Considerations for Companies and NGOs Exporting Supplies to Iran

In an earlier post, here, we scrutinized the form and content of the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)’s March 6, 2020 guidance pertaining to the provision of humanitarian goods and assistance to the people of Iran consistent with U.S. sanctions.

In this concluding post, we discuss the factors the international community should consider before exporting medicine and medical devices to Iran.

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OFAC Responds to COVID-19 in Iran

On March 6, 2020 and in response to an outbreak of coronavirus in Iran, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued guidance pertaining to the manner in which humanitarian goods and assistance may be provided to the people of Iran consistent with U.S. sanctions against Iran.

This two-part post examines, first, the form and content of OFAC’s March guidance and, second, the related considerations any company or non-governmental organization (NGO) wishing to export medicine and medical devices to Iran still needs to bear in mind.  Those considerations include ensuring the relevant items qualify under an existing medical general license and assessing whether their financial institutions will process related payments.

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IBK Settlements with US Authorities Regarding BSA/AML Violations

bank buildingOn April 20, 2020, the Industrial Bank of Korea (IBK) and its New York branch (IBKNY) (collectively, “the Bank”) entered into a Deferred Prosecution Agreement (DPA) with the U.S. Attorney’s Office for the Southern District of New York (SDNY), a non-prosecution agreement (NPA) with the New York Attorney General, and a Consent Order (the “Consent Order”) with the New York State Department of Financial Services (NYDFS), to resolve  violations of the Bank Secrecy Act (BSA), the International Emergency Economic Powers Act (IEEPA), the Iranian Transactions and Sanctions Regulations (ITSR), and various provisions of New York law.  The transactions at issue exceeded $1 billion, and the Bank agreed to an overall penalty of $86 million.

SDNY imposed a $51 million forfeiture for the Bank’s willful failure to establish and maintain an anti-money laundering (AML) compliance program, finding that the Bank’s compliance failures were so extraordinarily egregious and sustained that the Bank specifically intended to violate its obligations under the BSA.  NYDFS imposed a separate $35 million penalty for the Bank’s failure to maintain appropriate books, accounts, and records of all transactions as well as its failure to maintain an effective and compliant AML program.  Notably, the settlement with NYDFS follows a 2016 Written Agreement between the Bank, NYDFS, and the Federal Reserve Bank of New York (FRBNY) (the “Written Agreement”), reached after regulatory examinations identified serious and protracted deficiencies in IBKNY’s BSA/AML compliance program and its efforts to comply with regulations of the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and New York State and federal laws.

Our new client alert covers the IBK settlements and their implications in more detail.  We summarize the conduct that led to these settlements, which began nearly ten years ago.  We discuss the extreme compliance deficiencies identified by the regulators and consider how the Bank’s repeated and protracted failures to address those critical deficiencies resulted not only in additional regulatory scrutiny but ultimately in criminal liability.  We review the DPA and the Consent Order, and highlight the facts on which SDNY and NYDFS relied to find the Bank culpable.  We then examine the lessons for US financial institutions and domestic branches of foreign banks.