The second half of 2008 and early part of 2009 proved to be another watershed period for Foreign Corrupt Practices Act ("FCPA") and anti-corruption enforcement.  Although the pace of announced FCPA settlements and prosecutions slowed somewhat from the breakneck pace of early 2008, the sheer size of certain settlements and their attendant implications may prove to alter the way in which companies world-wide address anti-corruption issues.  Notably, the long-awaited December 2008 settlement between Siemens AG and U.S. and German regulators resulted in over $1.34 billion in combined fines (approximately $1.6 billion when including a previous settlement with German regulators), dwarfing the previous largest combined penalty of $44 million imposed on Baker Hughes in April 2007.  The settlements with Kellogg Brown & Root, Inc. and Halliburton Company (formerly operating together under Halliburton), announced in February 2009 and totaling a combined $579 million in criminal fines and disgorgement, confirms that the Siemens settlement was not an anomaly.

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On August 28, 2008, Deputy Attorney General Mark R. Filip released revised guidelines concerning the Principles of Federal Prosecution of Business Organizations (the "Filip Principles"). The Filip Principles, which replace guidelines previously issued by Deputy Attorney General Paul J. McNulty (the "McNulty Memorandum"), provide insight into the current tenor of the Justice Department, and are of utmost importance to business organizations and other interested parties in determining the most appropriate course of conduct in light of evidence or allegations of corporate wrongdoing and in structuring corporate compliance environments.

This Alert highlights certain of the significant differences between the Filip Principles and the McNulty Memorandum, including the treatment of attorney-client privilege in the context of cooperating with federal prosecutors and the continued ability of corporations to advance fees and expenses to corporate officials whose conduct is under review. The Filip Principles also emphasize the importance of thorough self-review and remediation by corporations when faced with potential wrongdoing, particularly in situations where a company may decide against self disclosure of that misconduct.

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The first half of 2008 has seen no abatement in the continued trend of increasingly aggressive enforcement of the Foreign Corrupt Practices Act ("FCPA").  Indeed, there have already been more enforcement actions in the first half of 2008 than the annuyal total in any previous year other than 2007.  Moreover, although the record-setting $44 million combined penalty levied against Baker Hughes in April 2007 has yet to be eclipsed, there have been a number of very large penalties.  For example, in late 2007 and early 2008, Chevron Corporation and AB Volvo entered into Oil-for-Food related settlements of $30 million and $19.6 million, respectively.  In May 2008, Willbros Group, Inc. settled FCPA charges witht he Securities and Exchange Commission ("SEC") and Department of Justice ("DOJ") for a combined $32.3 million.  In fact, a government official has publicly speculated that a $100 million FCPA settlment may not be far off.

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Please click on the thumbnail to the right to find a new FCPA Alert that discusses the Department of Justice's recent Opinion Procedure Release 08-02, that provides important merger-related FCPA guidance. Consistent with other recent DOJ pronouncements and enforcement proceedings, Release 08-02 emphasizes the compelling importance of due diligence, this time in the acquisition context. Among other things, the Release also (a) emphasizes the critical need to remediate improper conduct, including through the termination of relationships with third parties and employees; (b) reiterates the DOJ's view as to the importance of self-disclosure; and (c) clarifies to some extent the DOJ's view of inherited liability in the acquisition context, including pre-existing joint ventures and business relationships.

On April 26, 2007, Baker Hughes Inc. settled charges with the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”) relating to improper payments to two agents associated with its business in Kazakhstan and for failed due diligence in connection with payments made in Nigeria, Angola, Indonesia, Russia, Uzbekistan, and Kazakhstan; Baker Hughes was also penalized for violating a 2001 SEC cease and desist order requiring Baker Hughes to comply with the books and records and internal controls provisions of the FCPA.

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