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January 22, 2020

Global Anti-Corruption Insights: Winter 2020

Update on Recent Enforcement, Litigation, and Compliance Developments

2019 marked another active year of global anti-corruption law enforcement, delivering the second and third largest-ever settlements under the US Foreign Corrupt Practices Act (FCPA)—a $1.06 billion sanction against the Swiss telecom company Ericsson and an $850 million sanction against the Russian telecom company MTS. Three other companies (TechnipFMC, Walmart and Fresenius) each also paid nine-figure amounts to resolve FCPA enforcement actions this past year.

The U.S Department of Justice (DOJ) announced over 20 new prosecutions of individuals under the FCPA and related laws, an all-time high by some measures. Five individuals took their FCPA cases to trial, with the DOJ prevailing against four. The SEC, for its part, initiated four cases against individuals in 2019, on top of its 11 enforcement actions against companies across multiple industries. Any reports of the death of FCPA enforcement have been greatly exaggerated.

2019 also saw regulators issue new guidance for companies. In April, the DOJ updated its guidance on "Evaluation of Corporate Compliance Programs," setting forth a host of practical questions relating to three main topics: Is the corporation's compliance program well designed? Is the corporation's compliance program being implemented effectively? Does the corporation's compliance program work in practice? In November, the DOJ issued a memo on "Evaluating a Business Organization's Inability to Pay a Criminal Fine or Criminal Monetary Policy," which will be relevant to companies faced with the threat of penalties that jeopardize their continued viability. Across the pond, the UK Serious Fraud Office (SFO) issued guidance of its own on how it assesses a corporation's cooperation with an SFO investigation.


» DOJ Enforcement Actions

  • Enforcement Actions Against Companies
  • Declinations Pursuant to FCPA Corporate Policy
  • Enforcement Actions Against Individuals
  • Judicial Decisons

» SEC Enforcement Actions

» DOJ Guidance

  • Evaluation of Corporate Compliance Programs
  • Updates to FCPA Corporate Enforcement Policy
  • Inability to Pay Guidance

» US Legislative and Regulatory Proposals

» Selected International Developments

  • Brazil
  • Canada
  • South Korea
  • United Kingdom


Enforcement Actions Against Companies

In calendar year 2019, the DOJ announced seven FCPA enforcement actions against companies, four of which involved parallel SEC actions. Here are links to the DOJ's press releases:

Declinations Pursuant to FCPA Corporate Policy

Enforcement Actions Against Individuals

Trials in the Second Half of the Year

  • On December 2, 2019, a federal jury in Manhattan acquitted Privinvest Group executive Jean Boustani of all charges for his alleged role in a purported fraud and kickback scheme involving $2 billion in Mozambican government-backed loans for maritime projects. Prosecutors had charged Boustani, a Lebanese citizen who had been working United Arab Emirates-based Privinvest during the events at issue in the case, with one count each of conspiracy to commit securities fraud, wire fraud conspiracy and conspiracy to commit money laundering. After the verdict, certain members of the jury attributed the acquittal of Boustani to a perceived lack of nexus between his actions and the Eastern District of New York.
  • On November 8, a federal jury in Connecticut convicted Lawrence Hoskins, a former senior executive with Alstom S.A. (Alstom), a French power and transportation company, of six counts of violating the FCPA, three counts of money laundering, and two counts of conspiracy. Prosecutors had charged Hoskins, a UK citizen, for his alleged involvement in a scheme to bribe government officials in Indonesia to win a $118 million energy contract for Alstom Power Inc., Alstom's Connecticut-based subsidiary. In convicting Hoskins on the FCPA charges, the jury determined that Hoskins had been acting as Alstom Power's "agent" at the time he allegedly participated in the bribery scheme. The question of whether Hoskins, an Alstom executive in France, was an agent of a US subsidiary, took on particular significance after the US Court of Appeals for the Second Circuit rejected other theories the government had offered as to why Hoskins was subject to the FCPA.1
  • On November 22, a Maryland federal jury returned a guilty verdict against the former president of Transport Logistics Inc., a Maryland-based company that transports services nuclear materials, on four counts of violating the FCPA, two counts of wire fraud, and one count of conspiracy to violate the FCPA and commit wire fraud. Mark Lambert participated a scheme to bribe a Russian official to obtain contracts with a subsidiary of Russia's State Atomic Energy Corporation.

Indictments and Guilty Pleas Announced in the Second Half of the Year

Judicial Decisions

On August 9, 2019, the US Court of Appeals for Second Circuit affirmed a 2017 conviction of Ng Lap Seng, a Chinese real estate developer, who was charged under the FCPA and other laws in connection with the bribery of UN officials. United States v. Ng Lap Seng, 934 F.3d 110 (2d Cir. 2019). The Second Circuit rejected the defendant's attempt to overturn his FCPA conviction by extending the US Supreme Court's decision McDonnell v. United States, 136 S. Ct. 2355 (2016), to the FCPA. In McDonnell , the Supreme Court held that the general federal bribery statute, 18 U.S.C. § 201, requires proof that a bribe was paid in exchange for the commission of an "official act." 136 S. Ct. 2355 (2016). The Second Circuit determined, however, that "the FCPA does not cabin 'official capacity' acts or decisions to a definitional list." 934 F.3d at 134. In other words, textual differences between the federal bribery statute and the FCPA were dispositive in the Second Circuit's decision.

On August 29, 2019, US District Judge Nicholas Garaufis of the Eastern District of New York ruled that shareholders of a mining company harmed by a foreign bribery scheme qualified as "victims" under the Mandatory Victims Restitution Act (MVRA) and therefore were entitled to restitution from a defendant that had pleaded guilty to conspiring to violate the FCPA in relation to mining rights in the Democratic Republic of Congo. United States v. OZ Africa Management GP, LLC, No. 16-CR-515, 2019 WL 4249631 (E.D.N.Y. Aug. 29, 2019). Judge Garaufis read the MVRA broadly, finding that, "[w]hile the attenuated nature of Claimants' interest [in mining rights in the DRC]. . . may make calculating restitution more difficult, it does not preclude Claimants from being victims." Id. at 6. He also rejected the defendant's argument that a restitution order could not be entered after a guilty plea had been accepted. While the amount of restitution has not yet been determined, this case highlights collateral risks for companies settling FCPA cases.

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In calendar year 2019, the SEC resolved 13 FCPA enforcement actions against companies and brought six enforcement actions against individuals. Most recently, the SEC charged a former Goldman Sachs executive in Southeast Asia with FCPA violations for his role in a corruption scandal involving Malaysia's sovereign wealth fund (known as 1MDB). The former executive, Tim Leissner, previously resolved related cases with the DOJ and Federal Reserve Board.

The SEC website lists and summarizes the following other FCPA enforcement actions in calendar year 2019 as quoted below:

  • Tim Leissner—A former executive of Goldman Sachs Group Inc. agreed to a settlement with the SEC that includes a permanent bar from the securities industry for violating the FCPA by engaging in a corruption scheme, by which he obtained millions of dollars by paying unlawful bribes to various government officials to secure lucrative contracts for Goldman Sachs. (12/16/19)
  • Ericsson—The multinational telecommunications company agreed to pay more than $1 billion to the SEC and DOJ to resolve charges that it violated the FCPA by engaging in a large-scale bribery scheme involving the use of sham consultants to secretly funnel money to government officials in multiple countries. (12/6/19)
  • Jerry Li—SEC charged Jerry Li, a Chinese national and former managing director of the Chinese subsidiary of a U.S.-based direct selling company listed on the NYSE, for bribing government officials in China to obtain direct selling licenses made through payments of cash, gifts, travel, meals and entertainment. (11/15/19)
  • Westport and Nancy Gougarty—SEC charged this Canadian issuer and its former CEO Gougarty with bribing a Chinese government official in violation of the FCPA along with related violations of the books and records and internal accounting controls provisions. Westport and Gougarty agreed to pay more than $4.1 million to settle the charges. (9/27/19)
  • Barclays—The UK-based bank agreed to pay $6.3 million to settle violations of the internal accounting controls and recordkeeping provisions in connection with its hiring practices in Asia. (9/27/19)
  • Quad/Graphics, Inc.—the marketing solutions and printing service provider agreed to pay nearly $10,000,000 to resolve charges that it violated the FCPA by engaging in multiple bribery schemes in Peru and China, and creating false records to conceal commercial transactions with a state-controlled Cuban telecommunications company that were subject to U.S. sanctions and export controls laws. (9/26/19)
  • TechnipFMC plc—The global oil and gas services company agreed to pay more than $5 million to resolve violations of the FCPA's anti-bribery, internal accounting controls and recordkeeping provisions by FMC Technologies prior to its 2017 merger with Technip.S.A. for conduct related to Iraq. (9/19/19)
  • Sridhar Thiruvengadam—agreed to settle charges relating to his role in a bribery scheme while serving as chief operating officer of Cognizant, a New Jersey-based technology company. (9/13/19) See related actions against Cognizant (2/15/19) and Coburn and Schwartz. (2/15/19)
  • Juniper Networks—The California-based telecommunications company agreed to pay more than $11.7 million to resolve violations of the FPCA's internal accounting controls and recordkeeping provisions in China and Russia. (8/29/19)
  • Deutsche Bank AG—Deutsche Bank AG agreed to pay more than $16 million to resolve violations of the FCPA's internal accounting controls and recordkeeping provisions in connection with its hiring practices. (8/22/19)
  • Microsoft Corporation—The company agreed to pay more than $24 million to settle SEC charges related to FCPA violations in Hungary, Thailand, Saudi Arabia and Turkey and criminal charges related to Hungary. (7/22/19)
  • Walmart Inc.—SEC charged Walmart with violating the books and records and internal accounting controls provisions of the FCPA by failing to operate a sufficient anti-corruption compliance program for more than a decade as the retailer experienced rapid international growth. Walmart agreed to pay more than $144 million to settle the SEC's charges and approximately $138 million to resolve parallel criminal charges by the DOJ for a combined total of more than $282 million. (6/20/19)
  • Telefônica Brasil S.A.—SEC charged telecommunications company Telefônica Brasil with violating the accounting provisions of the FCPA when it sponsored the attendance of government officials at the World Cup and Confederations Cup. Telefônica Brasil agreed to pay a $4,125,000 penalty to settle the case. (5/9/19)
  • Fresenius Medical Care AG & Co.—the German based provider of products and services for individuals with chronic kidney failure has agreed to pay $231 million to the SEC and Department of Justice in a global settlement to resolve violations of the FCPA in multiple countries over the course of nearly a decade. (3/29/19)
  • Mobile TeleSystems PJSC—the Russian-based telecommunications provider agreed to pay $850 million in a global settlement to resolve violations of the FCPA to win business in Uzbekistan. (3/6/19)
  • Cognizant—The New Jersey-based technology company agreed to pay $25 million to settle violations of the anti-bribery, internal accounting controls, and recordkeeping provisions. (2/15/19)
  • Gordon Coburn and Steven E. Schwartz—the former Cognizant officials were charged with authorizing $2.5 million in bribe payments to a government official in India. (2/15/19)

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In 2019, the Department of Justice adopted three policy changes that impact FCPA enforcement.

Evaluation of Corporate Compliance Programs

In April 2019, the DOJ announced updates to its guidance on the "Evaluation of Corporate Compliance Programs." As discussed in our previous release, the revised guidance revolves around three main questions:

  1. "Is the corporation's compliance program well designed?"
  2. "Is the program being applied earnestly and in good faith? In other words, is the program being implemented effectively?"
  3. "Does the corporation's compliance program work in practice?"

These broad questions are further divided into subtopics that list more specific questions to consider when evaluating a compliance program.

Collectively, there are 61 new factors, including several focused on the "effectiveness" of compliance procedures. For example, when discussing the form, content, and effectiveness of compliance training, the previous guidance directed companies and prosecutors to consider whether "[t]he training [has] been offered in the form and language appropriate for the intended audience? How has the company measured the effectiveness of the training?" The new guidance provides four additional factors for consideration:

  • Is the training provided online or in-person (or both), and what is the company's rationale for its choice?
  • Has the training addressed lessons learned from prior compliance incidents?
  • Have employees been tested on what they have learned?
  • How has the company addressed employees who fail all or a portion of the testing?

The new guidance also provides some examples of measures that companies might consider incorporating into their own compliance programs, such as giving employees case studies to address real-life scenarios as part of their training curriculum.

Other new questions relate to the quantitative evaluation of compliance programs. For example, with respect to evaluating investigation processes, the DOJ asks, "[d]oes the company apply timing metrics to ensure responsiveness?" Similarly, the DOJ asks if the company has a "process for monitoring the outcome of investigations and ensuring accountability for the response to any findings or recommendations?" The guidance also looks to whether a company has dedicated sufficient staff and sufficient funding to compliance and control functions.

Overall, the questions "are neither a checklist nor a formula" for effective internal controls and the DOJ will make an "individualized determination in each case."2 As Brian A. Benczkowski, Assistant Attorney General for the Criminal Division, emphasized in a December 4, 2019 speech, in issuing the guidance, the Criminal Division "sought to convey to the bar and corporate community that [DOJ] places a significant value on compliance program investment and improvement, and that [DOJ] will approach compliance program evaluation in a thoughtful way that is guided by more than 20/20 hindsight."3

In heavily regulated industries, such as healthcare and finance, DOJ continues to recommend that prosecutors refer to industry-specific regulations and agency guidance when assessing compliance program effectiveness.

Updates to FCPA Corporate Enforcement Policy

The DOJ updated its FCPA Corporate Enforcement Policy to promote corporate self-disclosure and cooperation in governmental investigations. As discussed in a prior release, the 2017 guidance formalized the presumption that the DOJ would decline to prosecute companies that "voluntarily self-disclosed misconduct in an FCPA matter, fully cooperated, and timely and appropriately remediated" misconduct.4 In 2019, the DOJ adjusted the Policy to:

  • Promote early self-disclosure. Recent revisions encourage companies to disclose potential misconduct to the DOJ even if internal investigations are on-going. Indeed, the guidance changed the former policy from requiring disclosure of "all relevant facts known to it [the company], including . . . all individuals involved in the violation of law" to now requiring reporting of "all relevant facts known to it at the time of disclosure, including as to any individuals substantially involved in or responsible for the misconduct at issue." The new guidance also added a footnote stating, "[t]he Department recognizes that a company may not be in a position to know all relevant facts at the time of a voluntary self-disclosure, especially where only preliminary investigative efforts have been possible. In such circumstances, a company should make clear that it is making its disclosure based upon a preliminary investigation or assessment of information, but it should nonetheless provide a fulsome disclosure of the relevant facts known to it at that time."5
  • Promote disclosure misconduct detected in mergers and acquisitions. The DOJ added a new section specifying that an acquiring company could be eligible for a declination "even if aggravating circumstances existed as to the acquired entity" provided that the company detected the misconduct through "thorough and timely due diligence or, in appropriate instances, through post-acquisition audits or compliance integration efforts."6 Acquiring companies must also "voluntarily self-disclose[] the misconduct" and otherwise comply with the Policy, including implementing "an effective compliance program at the merged or acquired entity."7
  • Eliminate negligence standard in identifying external sources of information about misconduct. Companies' cooperation will not be evaluated based on what they "should" have known about potential information sources outside of their possession. Instead, a company must disclose such sources of information when "the company is aware of relevant evidence not in the company's possession."8
    • Give companies greater agency over internal investigations. The DOJ clarified that it would expect "deconfliction"—meaning a company's coordination with the DOJ about interviewing employees relating to potential misconduct—only when it is "requested and appropriate." DOJ noted that it "will not take any steps to affirmatively direct a company's internal investigation efforts."9
    • Ease requirements for full remediation credit. For example, the updated policy allows companies whose employees use personal communications and ephemeral messaging platforms to receive full remediation credit so long as "appropriate guidance and controls" are implemented to ensure proper document retention.10

Inability to Pay Guidance

In October 2019, the DOJ published a memorandum titled "Evaluating a Business Organization's Inability to Pay a Criminal Fine of Criminal Monetary Penalty." This memorandum provides long-awaited guidance on how the government will evaluate whether a company's financial condition justifies a lower criminal fine or monetary penalty than the parties otherwise agree would be appropriate based on the law and facts. According to the DOJ, companies bear the burden of proving their inability to pay a particular sanction and must cooperate fully with the DOJ's requests for information. The memorandum attaches an 11-topic questionnaire that companies asserting an inability to pay are expected to complete. In most cases, a company's ability to pay will be determined by an analysis of its responses to the questionnaire, which will be used to determine the company's current assets and liabilities, as well as to compare current and anticipated cash flows against working capital needs. More complex cases might require consideration of additional factors such as:

  • Background on the Current Financial Condition
  • Alternative Sources of Capital
  • Collateral Consequences
  • Victim Restitution Considerations

For qualifying companies, prosecutors may propose penalty adjustments sufficient to allow the company to remain viable and pay restitution. Procedurally, DOJ Section Chiefs must approve proposed reductions and the Assistant Attorney General or their designee must approve reductions of 25% or more.

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On August 2, 2019, the Foreign Extortion Prevention Act (FEPA) was introduced in the US House of Representatives. H.R. 4140, 116th Cong. (2019). Later the same month, the bill was referred to the Subcommittee on Crime, Terrorism, and Homeland Security. The proposed bill seeks to amend the federal bribery statute, 18 U.S.C. § 201, to prohibit a foreign official from (1) "being influenced" in the performance of an official act or (2) acting in violation of their "official duty," in exchange for anything of value. Thus, if passed, FEPA would enable prosecutors to do what they could not under the FCPA: charge foreign officials who accept bribes. "Currently, a business being extorted for a bribe can only say 'I can't pay you a bribe because it is illegal and I might get arrested. This long-overdue bill would enable them to add, 'and so will you,'" said Rep. John Curtis (R-Utah), a co-sponsor of the bill.

On December 18, 2019, the SEC proposed a new set of rules that would require issuers engaged in the commercial extraction of oil, natural gas or minerals to make annual disclosures of any payments beyond a certain threshold to the US and foreign governments. See Disclosure of Payments by Resource Extraction Issuers, 17 CFR pts. 240, 249 (proposed Dec. 18, 2019). The SEC is required to adopt such a rule pursuant to the 2012 Dodd-Frank Wall Street Reform and Consumer Protection Act. See Press Release 2019-264, SEC Proposes Rules to Implement the Statutory Mandate to Adopt Resource Extraction Disclosure Rules (Dec. 18, 2019). The current proposal represents the SEC's third attempt to implement this type of disclosure rule for issuers in the extractive industries. Id. The first iteration of the rule was struck down in federal court; the second was vacated by Congress. The current proposal features significant changes from the previous rules, including an exemption for emerging growth companies and issuers who recently completed an initial public offering. 17 CFR pts. 240, 249. Before becoming effective, the rule is first subject to a 60-day public comment period.

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On December 18, Brazilian federal police announced the 70th stage of Operation Car Wash, Brazil's sweeping investigation into corruption at Petrobras, with raids on the Brazilian offices of Danish shipping company A.P. Moller-Maersk (Maersk) as well as two local shipbrokers, Ferchem and Tide Maritime. Brazilian authorities allege that Maersk, the world's largest container shipping company, paid $3.4 million in bribes related to nearly a dozen shipping contracts worth $146 million with Brazil's national oil company. Maersk, whose executives first met with Brazilian investigators in 2014, announced that the company would cooperate fully with authorities.


On December 18, SNC-Lavalin Group Inc. (SNC-Lavalin), a Quebec-based engineering and construction firm, announced that it had settled federal criminal charges in connection with activities in Libya between 2001 and 2011. SNC-Lavalin's construction subsidiary, SNC-Lavalin Construction Inc., pleaded guilty to one charge of fraud and admitted that it paid CA$127 million to shell companies, nearly CA$48 million of which went to the son of former Libyan leader Colonel Moammar Gadhafi, to secure contracts in the country. Under the plea agreement, SNC-Lavalin Construction Inc. will pay a CA$280 million fine and will be subject to a three-year probation order. The related fraud and corruption charges against SNC-Lavalin and its international marketing arm, SNC-Lavalin International Inc., were withdrawn. The settlement brings to an end a case that became embroiled in political scandal earlier in 2019 when an Ethics Commissioner's report concluded that Prime Minister Justin Trudeau violated ethics laws when he tried to convince his then-justice minister Jody Wilson-Raybould to reverse her decision to not grant SNC-Lavalin a deferred prosecution agreement (DPA).

In a related case, on December 15, a Montreal jury found Sami Bebawi, a former SNC-Lavalin vice president, guilty on all five criminal charges that he faced in connection with an alleged kickback scheme that helped the company obtain construction contracts in Libya.

South Korea

In December, despite strong opposition from the main opposition party and conservative groups, South Korea's parliament passed legislation to create a government agency dedicated to investigating corruption among high-ranking civil servants, including the president, legislators, judges, and state prosecutors. The establishment of the agency will fulfill one of President Moon Jae-in's central campaign promises and serve as a cornerstone of his efforts to reform the country's law enforcement and judicial institutions, including the prosecutors' office, which has faced criticism for being used as a political tool under previous conservative governments. Of note, the new agency will be granted the authority to initiate criminal prosecution (in particular, the authority to issue an indictment), an authority previously only granted to the prosecutors' office. The new agency is expected to begin operations in July 2020.

United Kingdom

On November 25, the Crown Court at Southwark ordered Alstom Network UK Ltd. to pay a total of £16.4 million, including £15 million in fines and £1.4 million in costs, following the company's April 2018 conviction for conspiracy to corrupt relating to a €79.9 million contract to supply trams in Tunisia. This sentence marks the conclusion of the Serious Fraud Office (SFO)'s Alstom case, which led to conspiracy to corrupt convictions for three individuals and Alstom Power Ltd. in addition to Alstom Network UK Ltd.

Two former employees and the founder of Güralp Systems Ltd (GSL) were acquitted in December of charges that they conspired to bribe a public official and employee of the Korea Institute of Geoscience and Mineral Resources (KIGAM) between 2002 and 2015. Following the conclusion of the trial against former finance chief Andrew Bell, former sales head Natalie Pearce, and GSL founder Cansun Güralp, the SFO formally announced that it had entered into a DPA with the scientific instruments manufacturer in October, under which GSL agreed to accept charges of conspiracy to make corrupt payments and a failure to prevent bribery by employees and pay a total of with £2,069,861 in disgorgement of gross profits.

On August 16, the SFO published the updated "Corporate Cooperation Guidance" chapter in its Operational Handbook, providing guidance on "indicators of good practice" for companies seeking cooperation credit in the SFO's charging decisions. As discussed in greater detail in Arnold & Porter's UK Economic Crime Group: Enforcement Update from September 2019, the new guidance outlines concepts which have long been understood as important factors that the SFO considers when assessing cooperation from business entities, including whether and how a company preserves and presents evidence, consults with the SFO prior to interviewing key witnesses, makes witnesses available to the SFO, waives privilege and provides witness accounts to prosecutors, and does not protect certain individuals or "unjustifiably" blame others. While the SFO emphasizes that the document should not be regarded as "a complete list" of the factors that the it considers in assessing corporate cooperation, the guidance does provide helpful insights into SFO's expectations for those business entities who are or could come under its investigation.

In March 2019, the House of Lords Select Committee published a report about whether the Bribery Act 2010 (the Act) had been achieving its intended purposes since its enactment in 2010. In particular, the report considered the efficacy of the new offence of corporate failure to prevent bribery. In summary, the report recommended that the Act should provide more guidance for small and medium enterprises in respect of corporate hospitality but concluded overall that "the Act is an excellent piece of legislation which creates offences which are clear and all-embracing."

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© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This newsletter is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. See United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018). For additional analysis, see Second Circuit Limits Government's Ability to Prosecute Foreign Nationals for Violations of the FCPA.

  2. Justice Dep't News, Assistant Attorney General Brian A. Benczkowski Delivers Keynote Address at the Ethics and Compliance Initiative (ECI) 2019 Annual Impact Conference (Apr. 30, 2019).

  3. Justice Dep't News, Assistant Attorney General Brian A. Benczkowski Delivers Remarks at the American Conference Institute's 36th International Conference on the Foreign Corrupt Practices Act (Dec. 4, 2019).

  4. Justice Manual § 9-47.120.

  5. Id. at § 9-47.120(3)(a) & n.1 (emphasis added).

  6. Justice Manual § 9-47.120(4) & n.3.

  7. Id. at § 9-47.120(4).

  8. See id. at § 9-47.120(3)(b) (emphasis added).

  9. Id. at § 9-47.120(3)(b) & n.2 (emphasis added).

  10. See Justice Manual § 9-47.120(3)(c).