2. 6-2 "People who enjoy eating sausage and obey the law should not watch either being made.“ Otto von Bismarck (1815-1898) Chancellor of Germany
3. Key Legislation The Foreign Corrupt Practices Act (1977) The U.S. Federal Sentencing Guidelines for Organizations (1991) The Sarbanes-Oxley Act (2002) The Revised Federal Sentencing Guidelines for Organizations (2004) The Dodd-Frank Wall Street Reform and Consumer Protection Act (2010) 6-3
4. The Foreign Corrupt Practices Act (FCPA) Prior to the passing of this law, the illegality of paying bribes was punishable only through ‘secondary’ sources of legislation: The Securities and Exchange Commission (SEC) could fine companies for failing to disclose such payments under their securities rules. 6-4
5. The Foreign Corrupt Practices Act (FCPA) The Bank Secrecy Act also required the full disclosure of funds that were taken out of or brought into the USA. The Mail Fraud Act made the use of the US Mail or wire communications to transact a fraudulent scheme illegal. 6-5
6. The Foreign Corrupt Practices Act (FCPA) FCPA is enforced jointly by the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). The Act encompassed all the ‘secondary’ measures that were currently in use to prohibit such behavior by focusing on two distinct areas: 6-6
7. The Foreign Corrupt Practices Act (FCPA) Disclosure – the Act required corporations to fully disclose any and all transactions conducted with foreign officials and politicians, in line with the SEC provisions. Prohibition – the Act incorporated the wording of the Bank Secrecy Act and the Mail Fraud Act to prohibit the movement of funds overseas for the express purpose of conducting a fraudulent scheme. 6-7
8. The Foreign Corrupt Practices Act (FCPA) FCPA formally recognizes facilitation payments Acceptable provided they expedite or secure the performance of a routine governmental action Key distinction in identifying bribes is the exclusion of any action taken by a foreign official in the decision to award new or continuing business – such decisions are not deemed to be routine government actions
9. The U.S. Federal Sentencing Guidelines For Organizations (FSGO) 1991 Holds organizations liable for the criminal acts of their employees and agents Penalties under FSGO included: Monetary fines Organizational probation The implementation of an operational program to bring the organization into compliance with FSGO standards 6-9
10. The U.S. Federal Sentencing Guidelines For Organizations (FSGO) 1991 MONETARY FINES If an organization is sentenced under FSGO, the calculation of the fine is determined through a three-step process: The determination of the ‘base fine’ The Culpability Score – degree of blame or guilt The total fine amount 6-10
11. Revised FSGO 2004 Formally adopted in November, 2004 Three key changes Companies required to periodically evaluate the effectiveness of their compliance programs on the assumption that there was a substantial risk that any program was capable of failing The revised guidelines required evidence of an active promotion of ethical conduct rather than just compliance with legal obligations. Accountability was more clearly defined in the revised guidelines 6-11
12. Sarbanes-Oxley Act (SOX) 2002 Public Company Accounting Oversight Board (PCAOB) – independent oversight body for auditing companies (Title I) Auditor Independence (Title II) Corporate Responsibility (Title III) Enhanced Financial Disclosures (Title IV) Analyst Conflict of Interest (Title V) Commission Resources and Authority (Title VI) Studies and Reports (Title VII) Corporate and Criminal Fraud Accountability (Title VIII) White Collar Crime Penalty Enhancements (Title IX) Corporate Tax Returns (Title X) Corporate Fraud & Accountability (Title XI) 6-12
13. Dodd-Frank Wall Street Reform 2010 Promoted as the “fix” for extreme mismanagement of risk in the financial sector. Created Consumer Financial Protection Bureau (CFPB) within the Federal Reserve Financial Stability Oversight Council (FSOC) The Volcker Rule limit the ability of banks to trade on their own accounts (proprietary trading) 6-13
