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Invoking other provisions that lack a materiality threshold would hold companies liable for violations related to all transactions, not only those related to the FCPA’s anti-bribery guidelines

With the high-profile investigations into alleged FCPA violations by Walmart and GlaxoSmithKline, companies have become more convinced federal regulators mean business when it comes to enforcing anti-corruption laws. What corporate compliance departments may be less aware of is that, in addition to bribery directed at foreign government officials, the SEC and Department of Justice plan to get tougher on commercial bribery as well. As reported by the FCPA blog recently, the SEC’s FCPA unit chief, Kara Brockmeyer, announced at a conference in November that the commission will use the FCPA’s accounting provisions to go after commercial bribery that comes to light during probes into bribery of foreign officials, paying extra attention to a company’s books and records.

Kevin Abikoff, chair of Hughes Hubbard & Reed’s anti-corruption and internal investigations practices group, sees this as coming full circle with the SEC’s approach before the advent of the FCPA in 1977. Back then, the SEC’s only recourse for prosecuting bribery matters was under the disclosures provision of the Securities Exchange Act of 1934, charging a company with failure to disclose the bribes.