FCPA Liability For Hiring Practices Gains New Credence
By Bruce Searby (July 25, 2018, 12:11 PM EDT) -- The U.S. Department of Justice and the U.S. Securities and Exchange Commission have stood by an expansive theory of anti-bribery liability under the Foreign Corrupt Practices Act for corrupt hiring schemes. Even as some still questioned the commitment of the Trump administration to enforcement of the FCPA, publicly traded Credit Suisse AG and its Hong Kong subsidiary agreed this May and July 2018 to pay total penalties of $77 million for violations in connection with employing the family and friends of Chinese governmental officials. Legal, compliance and human resources professionals can take away from this latest disposition sound indicators for when making a so-called "referral hire" crosses the line from being an innocent practice into being a "thing of value" corruptly offered or provided to the referring official in order to obtain or retain business. However, the CS resolutions also hint at where the government may struggle to establish all elements required for an anti-bribery violation of the FCPA. Building cases against individual defendants may be particularly challenging....
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