LEGAL
VOICE OF ASIA 14
Section 2
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International Business and FCPA Compliance Part 2 even if they have acted outside the United states. In order to violate FCPA anti-bribery rules, a payment must be made “corruptly.” This means that there must be wrongful intent in efforts to influence the recipient. A violation may be cited even if no bribe is paid, and the identity of the recipient remains unknown. It is not important, either, whether the company receives the benefit of a corrupt payment. It is the intent that is important.
Surendran K. Pattel Attorney & Counselor at Law, PKS Law Firm, PLLC
Question: What are the anti-bribery provisions of the FCPA? Answer: It is unlawful under the anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA) to offer, pay, promise to pay, or authorize payment of money, or to offer, give, or promise to give anything of value to a foreign official in an effort to obtain a business or secure a questionable business advantage.
Improper payments may be anything of value, not just cash. These can be in the form of travel or entertainment expenses, or expensive gifts of a non-monetary nature. Foreign charitable contributions are allowed as long as they are not meant to influence a foreign official. Whatever the nature of the payment, be it direct or indirect, it is illegal if it is made for the purpose of influencing a foreign official. Payments to foreign officials through third parties or intermediaries, or payments to friends or family members, can be illegal if they are made with corrupt intent.
Anti-bribery provisions can apply both within the United States and abroad. While the original FCPA anti-bribery rules applied only to U.S. nationals and to U.S. firms and issuers, a 1998 amendment expanded the scope and application of FCPA’s anti-bribery provisions. As a result, antibribery provisions now apply not only to an act that promotes a foreign bribery scheme that occurs in the United States, but also to any act that utilizes any sort of interstate communication. It is irrelevant weather such communication occurred intrastate; the acts of U.S. companies and individuals are subject to the FCPA
There are possible defenses under FCPA anti-bribery provisions. One deals with whether transactions or payments comply with the local laws of the foreign country at issue. The other is rooted in determining whether an exchange of money is a legitimate and bona fide business expense. Payments made for routine
nondiscretionary governmental actions or payments made to protect against imminent danger of physical harm do not violate the FCPA. Since there is no specific statute of limitations in the anti-bribery provisions, a general five-year limitation period applies to what are viewed as serious violations. However, there are circumstances in which the limitations period can be extended; for instance, when it is determined that a conspiracy exists or simply to obtain evidence from foreign companies. In the next column we will look at FCPA accounting provisions. Disclaimer: Information in this column is meant to be general and informational; it is not intended as legal advice. Consult an attorney regarding your personal situation before you take any action that has legal consequences. BIO: Surendran K. Pattel is an Indian-born attorney in private practice in the Houston area. He is the founder of PKS Law Firm, PLLC. He is licensed to practice in Texas, United States District Court Southern District of Texas, and in India. To contact please email: adv. surendran@gmail.com
FRIDAY, January 12, 2018
County Attorney Ryan wins Court Order Stopping Hazardous Waste Dumping
H
arris County Attorney Vince Ryan won a court order on Monday stopping a Houston company from dumping hazardous waste into the city’s storm sewer system. The temporary restraining order prevents Wright Containers, LLC, 6633 Lindberg in southeast Houston, from accepting more waste and disposing of the waste into the city’s system. Judge Jeff Shadwick of the 55th State District Court ordered Wright Containers to return for a hearing on January 19. Wright Containers operates an industrial packaging company that supplies totes, steel drums, and other packaging products. Among its products are “Reconditioned Bottle Totes.” Totes are large plastic chemical storage containers that are encased in a heavy metal wire cage. Each tote is capable of holding approximately 300 gallons of waste. According to its website, “Wright Containers will pick up your dirty and empty IBCs.” Three company employees alerted authorities about ongoing violations of the Texas Water Code. The District Attorney, the City Attorney and the Houston Police Department used their information to obtain a search warrant. The search of Wright Containers by HPD on January 4 uncovered evidence that the company had accepted used hazardous waste containers without proper state authorization. Additional evidence
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Company owner Ron Wright has agreed to work with the County and City to ensure the business is in compliance with all applicable environmental laws before it resumes cleaning used containers.
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“Cleaning chemical waste containers is a hazardous business and one that requires strict compliance with state and city environmental law,” said County Attorney Ryan. “Dumping
waste from these containers in to the storm sewers is unacceptable. If the company’s employees had not alerted HPD to this problem it would have continued unreported. They may well have averted a disaster.”
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found at the site supported the whistleblower allegations that hazardous waste had been illegally dumped into a concealed storm drain leading to the City of Houston’s storm water collection system connected to Sims Bayou. Between 300 and 500 totes remain at the facility. Many contain hazardous waste, some of it is highly corrosive, and the totes are in various states of disrepair, with some leaking waste onto the ground.
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Officers took this photo of corrosive gelatinous sledge flowing into City storm drain at Wright Container.
Sharlene Sharmila Richards
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