FCPA Enforcement and Compliance in the Energy Sector: Trends and Updates

Live Webcast Date: Tuesday, May 07, 2019 from 12:00 pm to 1:30 pm (ET)

Online CLE FCPA Enforcement

Join us for this Knowledge Group Online CLE FCPA Enforcement Webinar. Although foreign corruption and bribery activities run rampant in every industry, the energy sector exposes itself to a higher risk compared to other businesses, as it often operates on larger scales and deals involving countries with different corruption and bribery laws and regulatory requirements.

The U.S. Department of Justice (DOJ) has been swarmed with lawsuits and alleged Foreign Corrupt Practices Act (FCPA) violations by companies in the energy sector. The heightened enforcement of the FCPA, along with the government’s collaboration with other countries, has intensified the crackdown of violators who are now faced with higher penalties and irreparable reputational damages.

The stakes are high. Companies in the energy industry must keep themselves abreast of the recent developments and trends in complying with the aforementioned act. They must also come up with effective strategies and techniques to mitigate the risks of exposure to potential FCPA violations.

In this Webcast, a panel of distinguished professionals and thought leaders will help companies in the energy sector and their counsel, understand the important aspects of this significant topic. They will provide an in-depth discussion of recent FCPA trends and developments. Speakers will also offer best practices in developing and implementing effective strategies and techniques in ensuring maximum compliance with the FCPA.

Key topics include:

FCPA Enforcement in the Energy Sector: Statistics
Recent Trends and Developments
Notable Cases
Compliance Issues and Solutions
Mitigating Risks
Best Practices and Practical Tips
The Future of FCPA and the Energy Industry

Agenda

SEGMENT 1:
Joseph A. Spinelli, Senior Managing Director
Ankura

Enhanced Due Diligence- A must for the Oil & Gas Industry
Proactive Compliance Steps for Energy Companies Doing Business Internationally & Compliance Guidance
Identifying the Risks Associated with Energy Companies Doing Business Internationally
Trends and Patterns of FCPA Enforcement – 2018

SEGMENT 2:
Anne Hukkelaas Gaustad, Partner
Hughes Hubbard & Reed LLP

Statistics: 2010 to 2015 extractive sector accounted for 40% of enforcement actions, and in the last five years we observe that the energy sector continues to be an area of focus for international regulators
Continued focus on energy sector, but private companies not the only ones that are subject to inquiries:
- The energy and mining sectors continue to attract significant attention from international enforcement authorities (including DOJ/SEC, SFO, Dutch, Italian and Nigerian regulators to mention a few))
- These cases appear to have a broader focus than before, notably through focus on the activities of state-owned companies (with Brazil’s Petrobras and Venezuela’s PDVSA being the most obvious examples of this trend.
- Focus on prosecution of individuals and government officials (see in particular the PDVSA-related cases), the latter on the basis of AML-statutes and other statutes
- PDVSA is also an interesting example because it is one of the cases where economic sanctions and FCPA concerns overlap (sanctioned entity on the basis of corrupt activity)
- We also see that the commodities trading companies are the subject of increased focus (see for example the recent interest taken into FCPA violations by the CFTC’s Division of Enforcement in its March 2019 Enforcement Advisory)
- Significant international cooperation in these cases
Notable cases: Petrobras (and cases other cases arising out of the Petrobras-affair), PDVSA, Shell, Rolls Royce, Unaoil, Halliburton, SBM, Keppel Offshore, ENI investigation, Electrobras, Linde (declination)
Compliance Issues and Solutions: Increasingly complex regulations for energy companies, increasing obligations to contribute to local development and CSR initiatives (qualifications of local leaders as public officials, tribal leaders), continued lack of transparency in a range of countries, local content requirements continue to present significant challenges (many countries are seeking to develop more stringent local content requirements, including Congo and Uganda), of on-shore operations, a lot of talk of due diligence initiatives but little advance on this.
Mitigate risks: continued focus on third-party due diligence, industry-wide initiatives
Future of FCPA enforcement in energy sector: likely continued high level of enforcement across countries given the high level of regulation and strategic interest of the sector for most countries.

SEGMENT 3:
Peter Turecek, Partner
Control Risks

As we see some consolidation in the energy sector and some M&A plays, new DOJ guidelines just out note that misconduct found during “thorough and timely due diligence”, voluntarily disclosed and with consistent remedial actions taken—the DOJ will have a presumption of a declination (though not guaranteed).
Failure to adhere to FCPA’s books and records and internal controls provisions seems to be a recurring theme of recent enforcement actions involving energy companies, despite a number of actions stemming from incidents up to 10 years earlier. The establishment, adherence to and testing of compliance policies is critical and is the low hanging fruit opportunity for energy companies to head off issues. It still holds true that almost the worst thing you can do is have policies and procedures in place and not be following them!
The biggest stumbling block, ESPECIALLY in the energy sector, particularly oil and gas companies operating internationally, seems to be activities involving agents/sales reps. We’ll have some discussion around APPROPRIATE due diligence on these critical resources. (Hint--light compliance screening just doesn’t cut it, leading to a discussion around screening v. investigative methodologies.)
And as always, tone from the top and enforcement from the top is critical to avoiding FCPA issues—both messaging and DEMONSTRATING through actions are critical to appropriate management of FCPA risks.

Who Should Attend

White Collar Crime Attorneys
FCPA Securities and Corporate Governance Attorneys
FCPA Practicing Lawyers
Regulatory and Policy Managers
Corporate Counsel
Compliance Officers
International Counsel
Directors and Executives
Top Level Management
Energy, Oil & Gas Companies
Other interested/related professionals

Preview Podcast

Please click the podcast below to hear the speakers discuss the key topics for this webcast.

Online CLE FCPA Enforcement

SEGMENT 1:
Joseph A. Spinelli, Senior Managing Director
Ankura

Enhanced Due Diligence- A must for the Oil & Gas Industry
Proactive Compliance Steps for Energy Companies Doing Business Internationally & Compliance Guidance
Identifying the Risks Associated with Energy Companies Doing Business Internationally
Trends and Patterns of FCPA Enforcement – 2018

SEGMENT 2:
Anne Hukkelaas Gaustad, Partner
Hughes Hubbard & Reed LLP

Statistics: 2010 to 2015 extractive sector accounted for 40% of enforcement actions, and in the last five years we observe that the energy sector continues to be an area of focus for international regulators
Continued focus on energy sector, but private companies not the only ones that are subject to inquiries:
- The energy and mining sectors continue to attract significant attention from international enforcement authorities (including DOJ/SEC, SFO, Dutch, Italian and Nigerian regulators to mention a few))
- These cases appear to have a broader focus than before, notably through focus on the activities of state-owned companies (with Brazil’s Petrobras and Venezuela’s PDVSA being the most obvious examples of this trend.
- Focus on prosecution of individuals and government officials (see in particular the PDVSA-related cases), the latter on the basis of AML-statutes and other statutes
- PDVSA is also an interesting example because it is one of the cases where economic sanctions and FCPA concerns overlap (sanctioned entity on the basis of corrupt activity)
- We also see that the commodities trading companies are the subject of increased focus (see for example the recent interest taken into FCPA violations by the CFTC’s Division of Enforcement in its March 2019 Enforcement Advisory)
- Significant international cooperation in these cases
Notable cases: Petrobras (and cases other cases arising out of the Petrobras-affair), PDVSA, Shell, Rolls Royce, Unaoil, Halliburton, SBM, Keppel Offshore, ENI investigation, Electrobras, Linde (declination)
Compliance Issues and Solutions: Increasingly complex regulations for energy companies, increasing obligations to contribute to local development and CSR initiatives (qualifications of local leaders as public officials, tribal leaders), continued lack of transparency in a range of countries, local content requirements continue to present significant challenges (many countries are seeking to develop more stringent local content requirements, including Congo and Uganda), of on-shore operations, a lot of talk of due diligence initiatives but little advance on this.
Mitigate risks: continued focus on third-party due diligence, industry-wide initiatives
Future of FCPA enforcement in energy sector: likely continued high level of enforcement across countries given the high level of regulation and strategic interest of the sector for most countries.

SEGMENT 3:
Peter Turecek, Partner
Control Risks

As we see some consolidation in the energy sector and some M&A plays, new DOJ guidelines just out note that misconduct found during “thorough and timely due diligence”, voluntarily disclosed and with consistent remedial actions taken—the DOJ will have a presumption of a declination (though not guaranteed).
Failure to adhere to FCPA’s books and records and internal controls provisions seems to be a recurring theme of recent enforcement actions involving energy companies, despite a number of actions stemming from incidents up to 10 years earlier. The establishment, adherence to and testing of compliance policies is critical and is the low hanging fruit opportunity for energy companies to head off issues. It still holds true that almost the worst thing you can do is have policies and procedures in place and not be following them!
The biggest stumbling block, ESPECIALLY in the energy sector, particularly oil and gas companies operating internationally, seems to be activities involving agents/sales reps. We’ll have some discussion around APPROPRIATE due diligence on these critical resources. (Hint--light compliance screening just doesn’t cut it, leading to a discussion around screening v. investigative methodologies.)
And as always, tone from the top and enforcement from the top is critical to avoiding FCPA issues—both messaging and DEMONSTRATING through actions are critical to appropriate management of FCPA risks.

Online CLE FCPA Enforcement

Joseph A. SpinelliSenior Managing DirectorAnkura

Joseph A. Spinelli is a Senior Managing Director at Ankura, based in New York. He has been a preeminent leader in multiple fields, including white collar crime investigations, anti-bribery and corruption, Foreign Corrupt Practices Act (FCPA) risk management, monitorships, and criminal investigations. He served as the first ever inspector general of New York State, and a special agent in the Federal Bureau of Investigation (FBI). In addition, he has served as a national partner in charge for several practices at a Big Four firm.

Anne Hukkelaas GaustadPartnerHughes Hubbard & Reed LLP

Anne Hukkelaas Gaustad is a partner based in our Paris office and assists clients on matters including anti-corruption compliance, corporate governance, corporate social responsibility, and securities laws, with particular experience in the design and implementation of anti-corruption compliance programs, conducting internal reviews and third-party due diligence, and assessing risks under international and national anticorruption frameworks. Her recent experience includes the global risk assessment and compliance review of a multinational “supermajor” oil company, the risk assessment and development of compliance policies and procedures for a multinational automotive company, advising on insider trading issues for a large sovereign wealth fund, and assisting with anti-corruption matters involving the World Bank Group. Anne is a graduate of Université Panthéon-Assas Paris II, Oxford University and New York University School of Law. Anne is admitted to the Norway, Paris, New York and District of Columbia bars. She is fluent in Norwegian, English, French, and Danish, and is proficient in German.

Peter TurecekPartnerControl Risks

Peter Turecek is a Partner in Control Risks’ Compliance, Forensics and Intelligence Practice in the Americas region, with an emphasis on investigative due diligence, business intelligence, corporate contests and multinational investigations. He also conducts a variety of other investigations related to litigation support, asset searches, employee integrity, and securities fraud. Pete has over 24 years of experience in the industry and works for a variety of clients, including major financial institutions, private equity and law firms, corporations and high-net-worth individuals and family offices.

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Online CLE FCPA Enforcement

Course Level:
Intermediate

Advance Preparation:
Print and review course materials

Method Of Presentation:
On-demand Webcast

Prerequisite:
General knowledge of anti-bribery and corruption law

Course Code:
147982

NY Category of CLE Credit:
Areas of Professional Practice

Total Credits:
1.5 CLE

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FCPA Enforcement and Compliance in the Energy Sector: Trends and Updates