set of investigations was reportedly initiated in April 2012 into 20th Century Fox, Walt Disney Studios, DreamWorks Animation and at least two other major Hollywood studios, regarding their dealings with China Film Group, a state-run company whose responsibilities include determining which foreign movies get access to a limited number of slots each year for revenue-sharing deals.469
Access to Information Information on numbers of foreign bribery cases is accessible, as is official information on case details of foreign bribery cases.
Inadequacies in Legal Framework There are no significant inadequacies in the US legal framework for enforcing foreign anti-bribery laws.
Inadequacies in Enforcement System The US maintains the most developed and active foreign bribery legal and enforcement regime in the OECD (and the world). As demonstrated by the number and significant nature of the investigations and enforcement actions detailed in the prior sections of this report, the SEC and DOJ remain two of the leading anti-corruption law enforcement agencies globally. However, the Working Group on Bribery in its Phase 3 Follow-Up report did not consider that the U.S. had made sufficient progress on its recommendation that the US clarify its policy on dealing with claims for tax deductions for facilitation payments, and give guidance to help tax auditors identify payments claimed as facilitation payments that are in fact in violation of the FCPA and/or signal that corrupt conduct in violation of the FCPA is taking place. Transparency International also USA believes it necessary that the SEC and DOJ study the deterrent effect of NPAs and DPAs and that they make public detailed reasons on the choice of a particular type of agreement, the choice of the agreement’s terms and duration, and how a company has met the agreement’s terms.470
Recent Developments The most important recent development was the publication in November 2012 of the long-awaited Resource Guide to the U.S. Foreign Corrupt Practice Act (the Guide) by the DOJ and SEC.471 While it is not legally binding, and effectively restates existing policy, it is nevertheless significant. TI USA had previously called for the issuance of guidance and welcomes the Guide’s publication. The 120page guide is comprehensive and reflects a significant effort on the part of both agencies responsible for enforcing the FCPA. Other noteworthy developments in 2012 included continuing litigation, particularly by individuals, continuing efforts by certain business groups to amend the FCPA, and a continuing significant level of investigations, prosecutions, and settlements by the DOJ and SEC, although at levels slightly lower than previous years. The efforts of some business groups led by the US Chamber of Commerce to effect legislative changes to the FCPA to the benefit of the business community appeared to lose momentum. There was a smaller number of enforcement actions against companies and individuals than in previous years. The drop does not, however, represent a de-emphasis of FCPA enforcement or a change in the legal or enforcement framework but rather the multi-year character of FCPA cases, 469
Reuters, Aruna Viswanatha, 24 April 2012, “Exclusive: SEC Probes Movie Studios over Dealings in China”, www.reuters.com/article/2012/04/24/us-sec-movies-idUSBRE83N15V20120424. 470 The OECD Working Group on Bribery, United States: Follow-Up to the Phase 3 Report and Recommendations, December 2012, www.oecd.org/daf/anti-bribery/UnitedStatesphase3writtenfollowupreportEN.pdf. 471 See www.justice.gov/criminal/fraud/fcpa/guidance/.
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