The Resource Guide also notes that “a number of countries have implemented foreign bribery laws and significantly increased their enforcement efforts.”The FCPA StatuteThe Foreign Corrupt Practices Act of 1977 (“FCPA”), which amended the Securities and Exchange Act of 1934 (“Exchange Act”), consists of: (1) three anti-bribery provisions, each of which addresses a different scenario: 15 U.S.C. § 78dd-1, § 78dd-2, and § 78dd-3 (“Prohibitions”); and (2) two accounting provisions, 15 U.S.C. § 78m(b)(2)(A) and § 78m(b)(2)(B). These accounting provisions complement the anti-bribery provisions because public companies must account for the assets, typically cash, which they allegedly use to pay bribes in these unlawful transactions.

7 15 U.S.C. § 78dd-2(h)(1).8 15 U.S.C. § 78m(b)(2).9 15 U.S.C. § 78m(b)(7).10 Id.11 15 U.S.C. §78m(b)(2).

Although the crackdown mainly focuses on Chinese officials and citizens, companies engaged in the Chinese financial sector should be mindful of this latest development. In violation of 15 U.S.C. §§ 78m(b)(2)(B), 78m(b)(5), and 78ff(a). Memorandum & Order, United States v. Ng, Case No. 1:18-cr-00538-MKB, ECF No. 202 (E.D.N.Y. Apr. 8, 2022).

Essentially, the term “issuer” refers to any public company with shares traded on a U.S. exchange. Securities Exchange Act of 1934, § 13(b)(2), ch. 404, 48 Stat. 894 (as amended through Pub. L. No. 111-72 (2009)) (codified as amended at 15 U.S.C. § 78m(b)(2) (1998)). Note that this is not limited to U.S.-listed companies, but can also include foreign companies that are knowingly trading American Depository Receipts (“ADRs”) on U.S. exchanges.3 Securities Exchange Act of 1934, § 13(b)(2)(A) (codified as amended at 15 U.S.C. § 78m(b)(2)(A)).4 Securities Exchange Act of 1934, § 13(b)(2)(B) (codified as amended at 15 U.S.C. § 78m(b)(2)(B)).

The Petitioners contend that the following issues are grounds for a Petition for Review:Whether the [SEC’s] economic analysis of Rule 13p-1 and Form SD is inadequate, in violation of 15 USC 78c(f), 15 USC 78w(a)(2) and 5 USC 603.Whether the [SEC’s] refusal to adopt a de minimis exception to Rule 13p-1 is erroneous, arbitrary and capricious, or an abuse of discretion.Whether the [SEC’s] interpretation of 15 USC 78m(p)(2)(B) as including non-manufacturers who “contract to manufacture” products is erroneous, arbitrary and capricious, or an abuse of discretion.Whether the [SEC’s] interpretation of “did originate” in 15 USC 78m(p)(1)(A) as “reason to believe…may have originated” is erroneous, arbitrary and capricious, or an abuse of discretion.

nder SEC Rule 10b-5(b), resolving a circuit split concerning whether private securities fraud claims could be based on an issuer’s failure to disclose information required under Item 303 of SEC Regulation S-K.Legal BackdropSection 10(b) of the Securities Exchange Act of 1934 makes it “unlawful for any person … [t]o use or employ, in connection with the purchase or sale of any security … [,]any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.” 15 U.S.C. § 78j(b). The SEC implemented this prohibition in Rule 10b-5(b), which makes it unlawful for issuers of registered securities to “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b).Separately, Section 13(a) of the Exchange Act requires issuers to file periodic informational statements. 15 U.S.C. §§ 78m(a)(1), 78m(b)(1). These statements contain the information required by Item 303 of Regulation S-K, including a “[d]escri[ption of] any known trends or uncertainties that have had or that are reasonably likely to have a material favorable or unfavorable impact on net sales or revenues or income from continuing operations.” 17 C.F.R. § 229.303(b)(2)(ii).Factual Background and Procedural HistoryMacquarie Infrastructure Corporation (“Macquarie”) owns a subsidiary that operates large “bulk liquid storage terminals” in the United States. Op., at *2. One of the commodities stored in these terminals is No. 6 fuel oil, a fuel oil that typically has a sulfur content of around 3%. Id. In 2016, the United Nations’ International Maritime Organization formally adopted IMO 2020, a regulation that capped the sulfur content of fuel oil used in shipping at 0.5% by the beginning of 2020. Id.Following the adoption of IMO 2020, Macquarie purportedly did not discuss that regulation in its disclosures. Id. at *2-

[5] See note 2, supra..[6] Complaint at 10 – 13, U.S. v. Espaillat, Mag. No. 18-1522 (D. N.J. 2018).[7] Id.[8] 15 U.S.C. § 78m(b)(2)(B)(i) & (iii) (level of reasonable assurances required under these provisions is defined as such “degree of assurance as would satisfy prudent officials in the conduct of their own affairs.” 15 U.S.C. § 78m(b)(7)).[9] SEC Report, supra note 2, at 2.

und, beyond a reasonable doubt, a conscious purpose to avoid enlightenment.’”) (quoting United States v. Zimmerman, 832 F.2d 454, 458 (8th Cir. 1987)); United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (upholding jury instruction that a defendant “knowingly” possessed marijuana even if he was not actually aware that it was in his car if “his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.”); United States v. Gallo, 543 F.2d 361, 367 (D.C. Cir. 1976) (recognizing that “[i]t may be true in a given case, such as where the notice was clear and was wilfully ignored, that evidence of such facts may be considered by the jury as part of the proof that an accused possessed the requisite knowledge”). 54) See15 CFR § 746. 55) 18 U.S.C. § 545. 56) The Human Trafficking Institute, “2019 Human Trafficking Report” at 51, 84. 57) See 15 U.S.C. § 78m(b)(2)(A) (books and records provision); 15 U.S.C. § 78m(b)(2)(B) (internal accounting controls provision); see alsoA Resource Guide to the U.S. Foreign Corrupt Practices Act, Second Edition, at 38–47. 58) SeeExecutive Order 13785; see alsoExecutive Order 13786. 59) See FCPA Resource Guide, Second Edition, at 71; see alsoUnited States v. Jeong, 624 F.3d 706, 710-12 (5th Cir. 2010) (“Article 4.3 states that two signatories with concurrent jurisdiction over a relevant offense must, ‘at the request of one of them,’ consult on jurisdiction.”).

834, 836 (2003) ("With the Sarbanes-Oxley Act of 2002, companies . . . [must] make certain real-time disclosures. . . . Issuers . . . [must] 'disclose . . . on a rapid and current basis such additional information concerning material changes in the financial condition or operations of the issuer, in plain English . . . as the Commission determines, by rule. . . .' 15 U.S.C. §78m(l). . . . [A] failure to do so can give rise to civil liability. . . . These disclosures include: (1)A change in control . . . ; (2)The company's acquisition or disposition of a significant amount of assets; (3)The company's bankruptcy or receivership; (4)A change in the company's certifying accountant; (5)The resignation of a company director; and (6)A change in the company's fiscal year. 15 U.S.C. §78m(l).").See also SEC Release Nos. 33-8400; 34-49424; File No. S7-22-02, Final Rule: Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date (Aug. 23, 2004), explaining why and how the Commission changed Form 8-K's reporting requirements:Under the previous Form 8-K regime, companies were required to report very few significant corporate events.

231 42 U.S.C. § 1320a-7(a).2 42 U.S.C. § 1320a-7(b).3 See 15 U.S.C. § 78m(b)(2)(A)–(B).4 See 15 U.S.C. § 78m(b)(5); 15 U.S.C. § 78ff(a).