International -- 2015

Shell Oil Co. v. Writt   (Texas Supreme Court)

Absolute privilege for communications to Foreign Corrupt Practices Act investigators

On October 31, 2014, the NAM and coalition associations filed an amicus brief with the Texas Supreme Court. The Foreign Corrupt Practices Act (“FCPA”) has played a very significant role in the federal regulation of multinational corporations. By punishing bribery and other illicit influence of foreign officials by U.S. companies, the statute seeks to improve the integrity of American businesses, promote market efficiency, and maintain the reputation of American democracy abroad. If a company’s employees violate the FCPA they can temper the consequences of their employees’ action only if they liberally cooperate with federal authorities, disclosing all relevant information. However, the Texas appeals court decision undermines this regime of corporate cooperation by denying absolute privilege for company’s confidential voluntary disclosure of potential FCPA violations to government investigators. The NAM brief argues t05hat if left intact, the decision may force employers to make the difficult decision not to disclose all of the details in relation to potential FCPA violations as soon as they are aware of them. In doing so, it impedes the government’s investigation of FCPA violations and negatively impacts American businesses. Accordingly, the decision of the court of appeals should be reversed.

On May 15, 2015, the Texas Supreme Court held that Shell Oil Company was entitled to an absolute privilege against a defamation lawsuit brought by a former Shell employee. The suit was based on statements made by Shell in its internal investigation and report to the U.S. Department of Justice regarding alleged violations of the Foreign Corrupt Practices Act. The Court’s opinion relied heavily on various statistics and other information provided in the amicus brief, including the Firm’s 2013 Year-End FCPA Update, which the Court cited.

Related Documents:
NAM brief  (October 31, 2014)


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