By Laura Billings
Introduction
Multinational corporations (MNCs) in various manufacturing and service industries have historically borne the brunt of Foreign Corrupt Practices Act (FCPA) prosecutions. By necessity, they have developed effective anti-corruption compliance programs. Meanwhile, financial institutions (FIs), the primary targets of anti-money laundering and Office of Foreign Assets Control (AML/OFAC) actions since the passage of the USA PATRIOT Act in 2001, have mastered AML/OFAC compliance programs.
Although motivated by different statutes, FCPA and AML/OFAC compliance fundamentals are conceptually and practically consistent. Both programs must understand the risks, money movements, and key players within their respective industries and companies, and therefore, an AML/OFAC or FCPA compliance program can be readily expanded to encompass the other discipline. In light of the growing confluence of FCPA and AML/OFAC prosecutions, MNCs and FIs would be well-advised to develop cross-competencies in their respective compliance programs.
Cross-Context Enforcement
A holistic approach to anti-corruption and AML/OFAC compliance is supported by the recent trends in regulatory and criminal enforcement actions. From the perspective of law enforcement, both FCPA and AML/OFAC cases are fact-driven investigations that aim to track the flow of money between players. In fact, the two offenses often arise from the same fund flow. For example, corruption proceeds likely require laundering in order to be exploited, and laundering charges often identify corruption as the underlying unlawful activity. Moreover, in the event there is a U.S. jurisdictional nexus, augmenting an FCPA-related indictment with money laundering charges can enable prosecution of the foreign official who received a bribe as well as the MNC that paid it.
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