Bribery at Bilfinger – Explain the legal background of the 2013 bribery charges and the nature of the deferred prosecution agreement. Where the charges justified under the FCPA?

Topic # 1 is a research project asking you to apply legal and ethical concepts to solve a practical problem and advise a company on its corporate strategy.

The paper should be approximately six double-spaced pages in length (excluding endnotes and appendices), with footnotes and/or endnotes providing specific citations to your sources. Your paper should cite to at least 5 different sources beyond the case documents. You may use any citation format you want, but need to use it consistently. There is no maximum length so you may submit a lengthier paper if you wish.

Bribery at Bilfinger

In 2013, Bilfinger (http://www.bilfinger.com/en/), an industrial services company based in Mannheim, Germany, avoided a bribery trial in the United States by paying a $ 32 million penalty and signing a three-year, deferred prosecution agreement with U.S. prosecutors that included strict compliance reforms (https://www.justice.gov/opa/pr/german-engineering-firm-bilfinger-resolves-foreign-corrupt-practices-act-charges-and-agrees). However, by September 2015, an independent monitor concluded the company still had not met the terms of the deal. Bilfinger had two choices: keep doing the same things and risk going to court on criminal charges, or radically change its corporate governance and business practices to comply with the terms of the deferred prosecution agreement. Prompted by the September 2015 independent monitor report, the Bilfinger supervisory board chairman has asked you for a memo covering the following issues:

  1. Explain the legal background of the 2013 bribery charges and the nature of the deferred prosecution agreement. Where the charges justified under the FCPA? How is it even possible that there is a penalty without a trial? Is the DOJ overstepping its authority in FCPA enforcement? Why was it possible to prosecute Bilfinger – a German company – in the U.S. for actions that happened in Nigeria? Was it wise to enter into the deferred prosecution agreement or should the company have fought the allegations on judicial grounds?
  2. What do you advise Bilfinger to do in order to comply with the deferred prosecution agreement? The deferred prosecution agreement can be accessed athttps://www.justice.gov/criminal-fraud/case/united-states-v-bilfinger-se-court-docket-number-413-cr-745
  3. In addition to the U.S. bribery case, the chairman is worried about Bilfinger’s recent dealings in Brazil. There is some suspicion that Bilfinger may have paid 1 million Euros to public officials in Brazilin connection with orders for large screens for security control centers during the 2014 soccer World Cup. The chairman has learned that according to a 2014 Brazilian law, companies, which have been convicted for bribery, could be banned from future contracts in Brazil. Is there anything Bilfinger could do proactively in order to avoid losing its lucrative Brazil business?
  4. Should Bilfinger go beyond what it is required to do by the DOJ? Would additional compliance reforms or structural changes be in the interest of the company? What supplementary measures or reforms would you recommend? Note, that Bilfinger is a publicly traded corporation. Should you be concerned about fiduciary duties to the company’s shareholders?

Make every sentence be thoughtful and contribute to the analysis. Do not waste space with a general background of Bilfinger or the bribery scandal itself. Assume that is already understood. Most of your paper should be spent solving problems rather than describing them and applying pertinent legal, ethical, sustainable, and social responsibility principles rather than summarizing them. Focus on solutions, not restating what went wrong. General statements such as “Bilfinger should do the right thing” or “Bilfinger needs to build a culture of compliance” without more are not useful. Please provide a detailed analysis that addresses the questions raised. Include legal, ethical, strategic or other factors as necessary in your decision making process. Also remember that Bilfinger has limited time and resources. Answer the questions given Bilfinger’s constrained resources. Finally, use the facts of the Bilfinger case to support your answers to the above questions. Your recommendations should be tailored to the specific challenges and opportunities that Bilfinger faces. Generalized recommendations that can be applied to any company will not be well received.

Research to help you get started

http://www.bilfinger.com/en/(keep in mind that this company website already reflects the corporate governance changes implemented by Bilfinger between September 2015 and today). You are welcome to seek inspiration for reform proposals on the company website. However, your memo should be written as „recommendations as of September 2015“ rather than a critical reflection on what the company actually has done.

http://fcpaprofessor.com/category/bilfinger/

Woody, Karen. (2018). “DECLINATIONS WITH DISGORGEMENT” IN FCPA ENFORCEMENT. University of Michigan Journal of Law Reform, 51(2), pages 270 – 301 only (HuskyCT).

FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act, athttps://www.shearman.com/~/media/Files/NewsInsights/Publications/2017/01/Recent-Trends-and-Patterns-in-the-Enforcement-of-the-Foreign-Corrupt-Practices-Act-011117.pdf

Berger-Walliser, G., Scott, I. (2018). “Redefining Corporate Social Responsibility in an Era of Globalization and Regulatory Hardening,” American Business Law Journal,55 (1) 167-218.Download now

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