What You Can't Afford to Discount: Protecting Your Company from FCPA Risks

(178 Ratings)

Produced on: May 13, 2015

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 61 minutes
Difficulty Intermediate

Companies that sell products and services internationally must understand the actions that can lead to criminal prosecution under the U.S. Foreign Corrupt Practices Act (FCPA). The U.S. government has become more active in FCPA enforcement, and a number of senior executives have faced fines, jail sentences and loss of their jobs and reputation. Companies are also facing expensive investigations and criminal cases or complex settlements with the Department of Justice and the Securities and Exchange Commission. Virtually all companies operating internationally will face FCPA issues, and relatively simple preventative measures and compliance steps can help avoid problems when these issues occur. This webinar, presented by Kelley Drye & Warren LLP partner Eric McClafferty explains the basics of the FCPA and strategies for avoiding violations.

 

Learning Objectives: 

I.           Summarize the Foreign Corrupt Practices Act (FCPA) 

II.          Identify Prohibited conduct 

III.         Recognize corporate liability for the actions of foreign subsidiaries, suppliers, or rogue employees 

IV.         Differentiate “Reasonable and Bona Fide Business Expenditure” and facilitation payment best practices 

V.          Describe how to approach giving and receiving gifts and conducting business entertainment 

VI.         Implement FCPA compliance policies and procedures 

VII.        Ascertain appropriate due diligence in selecting foreign intermediaries 

VIII.       Give advice for training staff 

IX.         Notice red flags that could indicate non-compliance 

X.          Be cognizant of what kind of auditing is sufficient

XI.         Summarize lessons from recent FCPA cases 

XII.        Explain internal investigations—when to conduct one, who should conduct it, and what to do if you find evidence of non-compliance 

XIII.       Tell when and how to think about voluntary self-disclosures to the U.S. government

Faculty

Eric R. McClafferty

Kelley Drye & Warren LLP

Eric McClafferty is a partner in the firm’s Washington, D.C. office and chair of the International Trade and Customs practice group. He focuses his practice on international trade and has substantial experience in export controls and compliance, Foreign Corrupt Practices Act (FCPA), and antidumping and countervailing duty cases.

 

In December 2006, Mr. McClafferty was appointed by former Secretary of Commerce Carlos Gutierrez to serve on the Materials Technical Advisory Committee. In this role, Mr. McClafferty advises the Commerce Department regarding export controls on chemicals, biotechnology items, metals, exotic materials, materials processing equipment and other materials issues.

 

Export Control and Compliance

 

Mr. McClafferty advises clients on export licensing and classification, performs due diligence export compliance reviews, and establishes company and product specific compliance and training programs. Additionally, Mr. McClafferty guides clients through export enforcement investigations and penalty negotiations. His experience extends to the rules relating to trade with sanctioned and embargoed countries and entities, and other national security and foreign policy controls, including FCPA.

 

Mr. McClafferty represents and advises exporters of industrial, high-technology, and agricultural products and associated technology such as chemical processing equipment; chemicals; pharmaceuticals; computers; satellite software and components; semiconductors; specialty metals, powders and alloys; nuclear power plant components; and a wide variety of petrochemical products.

 

His experience includes working with all the principal export control agencies of the U.S. government, including the Department of Commerce’s Bureau of Industry and Security (BIS); Department of State’s Directorate of Defense Trade Controls (DDTC); and counterparts at the Department of Defense (DOD), Department of Treasury’s Office of Foreign Assets Control (OFAC) and Nuclear Regulatory Commission (NRC), and the Department of Energy (DOE).

 

Foreign Corrupt Practices Act (FCPA)

 

Mr. McClafferty represents businesses and individuals in enforcement actions brought by the U.S. Department of Justice and the Securities and Exchange Commission. Mr. McClafferty is regularly called on to conduct internal investigations, to provide counsel during investigations, and to design remedial compliance and corporate governance measures. He regularly conducts investigations of possible FCPA violations and other potentially improper foreign country-based financial transactions, and works proactively with companies to structure and implement FCPA compliance programs.

 

Trade Remedies

 

Mr. McClafferty has years of experience representing domestic producers and importers in antidumping and countervailing duty proceedings before the International Trade Administration (ITA) and International Trade Commission (ITC), including work on hand tool cases, multiple steel industry cases, DRAMS, agricultural cases and a variety of other proceedings.

 

Market Access and WTO

  • On behalf of his clients, Mr. McClafferty has worked with the Office of the U.S. Trade Representative (USTR) on foreign market access issues, section 301 actions, and Generalized System of Preferences (GSP) petitions and reviews. Mr. McClafferty’s experience extends to representing clients in World Trade Organization matters, including dispute settlement issues.
  • Additionally, he has advised corporations and other importers concerning a wide variety of issues before the U.S. Customs Service and regularly appears on behalf of clients before the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit.
  • From 1984-1993, Mr. McClafferty served as a U.S. Department of State Foreign Service Officer and was stationed in the Hague, the Netherlands, Geneva, Switzerland and the United States.

 

Representative Experience

 

Export Control and Compliance

  • Providing export compliance training, counseling and licensing assistance to a high-technology company with more than 20,000 monthly export shipments of electronic products, software and related technology, including a high percentage of exports containing encryption.
  • Assisting the international subsidiaries of a large U.S. company with more than 24 foreign affiliates in the review of all products for export and re-export license requirements and related exports.
  • Advising an international manufacturing company with $4 billion in annual revenue concerning numerous potential export control violations, analysis of potential voluntary disclosures, document retention policies and processes, improvements to their compliance system and related issues. Coordinated 35 site visits to conduct on-site export compliance reviews and training. Conducted in-person advanced export compliance training seminars for compliance managers.
  • Prepared, customized, implemented and provided training for a compliance system at a large e-logistics provider with international operations.
  • Assisted with preparation, customization, implementation and training for a compliance system at a major electronics supply company.
  • Prepared export compliance manuals for a large company with products having military, dual use and nuclear applications, and advise the company on a variety of supplementary export control obligations.
  • Acting as an advisor to the U.S. pump and valve industry associations and as export counsel to a number of U.S. manufacturers regarding export control issues. Also serve as the industry’s primary contact with export control agencies regarding product, technology and enforcement issues.
  • Drafted content for Commerce Department and State Department export compliance modules for a major e-learning training provider.

 

FCPA

  • Advising a Fortune 50 retailer regarding export compliance and FCPA issues. Drafted and designed web-based compliance training programs.
  • Conducting FCPA internal investigations for several multibillion-dollar international manufacturers.

Customs

  • Conducted multiple training sessions at various U.S. ports for U.S. Customs officers regarding import enforcement and circumvention issues.
  • Obtained several million dollars in Customs duties for a small U.S. manufacturer.
  • Obtained the release of multiple products from Customs seizure.
  • Represented importers in Customs seizure cases involving allegedly counterfeit products.
  • Obtained favorable Customs rulings and Harmonized Tariff classifications for multiple products.

Trade Remedy and WTO

  • Represented clients in multiple antidumping duty and countervailing duty investigations and reviews, including oral arguments on appeal issues at the U.S. Court of International Trade.
  • Represented the interests of multiple manufacturing industries involving antidumping and countervailing duties cases brought to the World Trade Organization and through coordination efforts with the USTR.

 

Memberships & Associations

  • The Customs and International Trade Bar Association (CITBA)
  • National Council on International Trade Development (NCITD)
  • American Bar Association, Section of International Trade

 

Community Activities

  • Step Up, Inc., an international development organization, board of directors and general counsel
  • University of Michigan Alumni Association
  • University of Virginia Alumni Association

 

Honors & Awards

  • Ranked as a leading practitioner in the International Trade: Export Controls & Economic Sanctions area by Chambers Global, 2014.
  • Ranked nationally as a leading practitioner in the International Trade: Export Controls & Economic Sanctions area by Chambers USA, 2013-2014.
  • Recommended in US Legal 500 for his work in the International Trade area, 2009-2010 and 2012-2014.

Reviews

GG
Gal G.

Great Class.

RM
Richard M.

Excellent content. Helpful presentation.

DB
Dennis B.

good instructor

EB
Eric B.

Very good presentation with helpful examples.

TF
thomas f.

very well done

AM
Amy M.

I actually intend to listen again... such good info I am afraid I couldn't take notes quickly enough.

LL
Lisa L.

Very good program.

KW
Kathryn W.

I recommend this lecture by Eric McClafferty to any attorney who is on a Board of Directors of an international company. It is excellent and important information.

JB
James B.

Excellent!

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