James Tillen Quoted Regarding BHP's Settlement Charges to SEC for FCPA Violation in Main Justice

"BHP Billiton Agrees to Pay $25m to Settle SEC Charges of Beijing Olympics-related Foreign Bribery"
Main Justice

James Tillen was quoted regarding BHP Billiton's settlement with the Securities and Exchange Commission (SEC) for $25 million for Foreign Corrupt Practices Act (FCPA) violations. After a nearly six-year investigation, the SEC charged BHP with failing to devise and maintain sufficient internal controls over travel it sponsored for foreign officials to visit the 2008 Beijing Summer Olympic Games. According to the SEC, the company violated the books and records provisions of the FCPA when its employees failed to disclose on internal forms how hospitality for the foreign officials was connected to business goals.

Tillen said this settlement is an unusual books-and-records violation because instead of a breach in which corporate executives disguised bribes as something else, the violation involved internal forms. He also said this case stands out for being one of few in which gifts, travel and entertainment are the centerpiece. It will likely have a "chilling effect" on companies considering hosting public officials at future Olympics, he said.

If companies want to sponsor officials, Tillen said, "they have to at least jump through a few more hoops than BHP did." One way to do so is by considering whether a foreign official is allowed to accept a certain gift under local law, he said, and added that caps on what someone can accept serve as benchmarks for companies seeking to comply with the FCPA. "If this amount [in consideration] far exceeds that [cap], … then that would inform the FCPA analysis, and it would be more likely that prosecutors would view it as attempting to improperly influence the official," he said. "Conversely, if it's consistent with written local law, that would suggest that it doesn't violate the FCPA." Companies could also communicate with the counsel or ethics officer of the foreign official's employer at the same time as they invite the official to an event; that way, he said, the counsel can alert companies to any potential law violations before they occur.

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