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The Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (“FCPA”) prohibits any U.S. citizen, resident, national, or corporation from bribing foreign politicians or government officials. In the last five years, there have been two noticeable FCPA trends: 1) increased enforcement; and 2) increased sanctions. On Jan. 13, 2010, the Securities and Exchange Commission (“SEC”) announced the creation of five national specialized units to address complex areas of securities fraud, one of which will be dedicated to the enforcement of the FCPA. See Release, “SEC Names New Specialized Unit Chiefs and Head of New Office of Market Intelligence,” 2010-5 (Jan. 13, 2010). The Chief of the Foreign Corrupt Practices Act Unit, Cheryl Scarboro, also signaled an increase in enforcement actions, “[t]he [SEC] has brought landmark cases in recent years involving Siemens and Halliburton and the former CEO of KBR. Civil sanctions are at an all-time high. This is an opportune time for the Commission to dedicate more resources to this vital part of the Enforcement program ' A primary mission of this Unit is to devise ways for us to be more proactive in our enforcement of the FCPA.” Id.
To demonstrate this resolve, there are approximately 150 ongoing FCPA investigations, eight full-time Department of Justice (“DOJ”) FCPA prosecutors (in addition to more than 50 other prosecutors in the fraud section of the DOJ) and 10 FBI agents dedicated exclusively to FCPA enforcement. Indeed, just this past January, 150 FBI agents arrested 22 individuals and executed 14 search warrants across the country resulting from an undercover operation relating to alleged foreign bribery in the military and law enforcement products industry. “This ongoing investigation is the first large-scale use of undercover law enforcement techniques to uncover FCPA violations and the largest action ever undertaken by the Justice Department against individuals for FCPA violations,” said Assistant Attorney General Lanny A. Breuer. See Release, “Twenty-Two Executives and Employees of Military and Law Enforcement Product Companies Charged in Foreign Bribery Scheme” (Jan. 19, 2010). “The fight to erase foreign bribery from the corporate playbook will not be won overnight, but these actions are a turning point. From now on, would-be FCPA violators should stop and ponder whether the person they are trying to bribe might really be a federal agent.” Id.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.