Historical FCPA bribery cases and anti‑corruption debarment procedures referenced in House Oversight document

bribery scheme to pay foreign officials of Saskatchewan's state-owned. transportation company $50,000 CAD in connection with sale of buses); United States v. Carver, et al., No. 79-cv-1768 (S.D. Fla. 1979) (entry of injunction barring company from future FCPA violations based on allegations that Carver and Holley, officers and shareholders of Holcar oi Corp., paid $1.5 million to Qatar foreign official to secure an oil drilling concession agreement); United States v. Kenny, e¢ al., No. 79-cv- 2038 (D.D.C. 1979) (in conjunction with criminal proceeding, entry of injunction barring company from future FCPA violations for providing illegal financial assistance to political party to secure renewal of stamp distribution agreement). 3815 US.C, §§ 78dd-2(g)(1)(B), 78dd-3(e)(1)(B), 78H(c)(1)(B)s see also 17 CER. § 201.1004 (providing adjustments for inflation). 3915 US.C, §§ 78dd-2(g)(2)(B), 78dd-3(e)(2)(B), 78E(c)(2)(B)s see also 17 CER. § 201.1004 (providing adjustments for inflation). 315 US.C. §§ 78dd-2(g)(3), 78dd-3(e) (3), 78ff(c) (3); see also 17 C.RR. § 201.1004 (providing adjustments for inflation). %! Section 21(B)(b) of the Exchange Act, 15 US.C. § 78u(d)(3); see also 17 CER. § 201.1004 (providing adjustments for inflation). 3® See Securities Enforcement Remedies and Penny Stock Reform Act of 1990, Pub. L. No. 101-429, 104 Stat. 931 §§ 202, 301, 401, and 402 (codified in scattered sections of Title 15 of the United States Code). 38 48 CER. §§ 9.406-2, 9.407-2. 3448 CER. § 9.402(b). 365 See 48 C.ER. §§ 9.406-1, 9.407-1(b) (2). Section 9.406-1 sets forth the following non-exhaustive list of factors: (1) Whether the contractor had effective standards of conduct and internal control systems in place at the time of the activity which constitutes cause for debarment or had adopted such procedures prior to any Government investigation of the activity cited as a cause for debarment. (2) Whether the contractor brought the activity cited as a cause for debarment to the attention of the appropriate Government agency ina timely manner. (3) Whether the contractor has fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official. (4) Whether the contractor cooperated fully with Government agencies during the investigation and any court or administrative action. (5) Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative liability for the improper activity, including any investigative or administrative costs incurred by the Government, and has made or agreed to make full restitution. (6) Whether the contractor has taken appropriate disciplinary action against the individuals responsib. e for the activity which constitutes cause for debarment. (7) Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the Government. (8) Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs. (9) Whether the contractor has had adequate time to eliminate the circumstances within the contractor's organization that led to the cause for debarment. (10) Whether the contractor’s management recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment and has implemented programs to prevent recurrence. 3 48 CER. § 9.406-1(a). 367 Exec, Order No. 12,549, 51 Fed. Reg. 6,370 (Feb. 18, 1986); Exec. Order No. 12,689, 54 Fed. Reg. 34131 (Aug. 18, 1989). 38 48 CER. § 9.407-2(b). 3° USAM § 9-28.1300 (2008). 3” See, e.g, AFRICAN DEVELOPMENT BANK GROUP, INTEGRITY Endnotes AND ANTI-CORRUPTION PRoGREss REPORT 2009-2010 7, 14 (“As the premier financial development institution in Africa, the AfDB is determined to root out misconduct, fraud and corruption within its own ranks as well as in the implementation of the projects it finances. In order to do so, the Bank created an anti-corruption and fraud investigation division in November 2005 as its sole investigative body. The unit became operational in June 2006 and commenced investigations in January 2007. ... Investigations conducted by the IACD [Integrity and Anti-Corruption Department] are not criminal proceedings; they are administrative in nature. Sanctions range from personnel disciplinary actions, such as separation, to loan cancellation and debarment for contractors, which can be temporary or permanent.”), available at http i// www.afdb.org/ fileadmin/ uploads/ afdb/Documents/ Publications/ Integrity%20and%20Anti- Corruption. pdf; ; The World Bank Group, Procurement: Sanctions Committee (“The World Bank’s debarment process was first formulated in July, 1996, and the Sanctions Committee was established in November 1998 to review allegations and recommend sanctions to the President. Written procedures were issued in August 2001 and are posted on the Bank’s website, along with the sanction actions.’), available at http // ‘web.worldbank.org/ WBSITE/ EXTERNAL/PROJECTS/PROCUREMENT/90,,contentwDK:5000 2288~pagePK:8427 1 ~piPK:84287 ~theSitePK :84266,00.html. 37) See African Development Bank Group, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank Group and World Bank Group, Agreement for Mutual Enforcement of Debarment Decisions (Apr. 9, 2010), available at http //) siteresources.worldbank.org/ NEWS/Resources/ AgreementForMutualEnforcementof DebarmentDecisions.pdf. 372 Id; see also The World Bank Group, Cross-Debarment Accord Steps Up Fight Against Corruption (Apr. 9, 2010) (“With today’s cross-debarment agreement among development banks, a clear message on anticorruption is being delivered: Steal and cheat from one, get punished by all? said World Bank Group President Robert B. Zoellick.”), available at hetp:/ / web.worldbank.org/ WBSITE/EXTERNAL/NEWS/0,,contentMDK:2 2535805 ~pageP K:64257043~piPK :437376~theSiteP K:4607,00.html. 3392 CER. §§ 126.7(a)(3)-(4), 120.27(a)(6). 34 Authority under the AECA is delegated to the DDTC. See 22 C.ER. § 120.1 (a). 37592 US.C. § 2778(g)(1)(A) (vi), (g) (3) (B). 37699 CER. § 127.7(c). 377 See supra note 286, 578 See Gary G. Grindler, Acting Dep. Att’y Gen., U.S. Dept. of Justice, Mem. to the Heads of Department Components and United States Attorneys on Additional Guidance on the Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution (May 25, 2010), available at http ://www.justice.gov/ dag/ dag-memo-guidance- monitors.pdf; Lanny A. Breuer, Assist. Att’y Gen., Dept of Justice, Mem. to All Criminal Division Personnel on Selection of Monitors in Criminal Division Matters (June 24, 2009), available at hetp:/ /www. justice.gov/criminal/fraud/fcpa/docs/response3 -supp-appx-3.pdf; see also Craig S. Morford, Acting Dep. Att’y Gen., US. Dept. of Justice, Mem. to the Heads of Department Components and United States Attorneys on Selection and Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution Agreements with Corporations (Mar. 7, 2008), available at http :// www justice.gov/dag/morford- useofmonitorsmemo-03072008.pdf. a7) Historically, DOJ had, on occasion, agreed to DPAs with companies that were not filed with the court. That is no longer the practice of DOJ. 3899 USAM § 9-27.230. 31USAM § 9-27.230.B. 382 DOJ has recently declined matters where some or all of the following HOUSE_OVERSIGHT_022620