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Cracking the FCPA Code: Interpreting Recent DOJ and SEC Enforcement and Messaging
Notwithstanding expectations of a shift in government enforcement priorities, after more than a decade, Foreign Corrupt Practices Act (FCPA) enforcement still shows no signs of slowing down. Indeed, the last two years each welcomed two new members to the list of 10 largest corporate enforcement matters: Total and Weatherford in 2013, and Alstom and Alcoa in 2014.
Despite increased corporate focus on anti-corruption generally and the FCPA specifically, the world is slow to change. Business norms in many high-risk jurisdictions and industries around the globe remain largely unaffected by the wave of anti-corruption enforcement. Further, as seen in the unfolding Petrobras scandal in Brazil, prosecutors and regulators outside the United States are now seizing the opportunity to initiate (rather than just participate in) U.S.-style investigations and resolutions. Finally, this vigorous global enforcement environment coincides with a period of high turnover in leadership at the Department of Justice (DOJ), including a new Attorney General (Loretta Lynch), Assistant Attorney General in charge of the Criminal Division (Leslie Caldwell), Chief of the Fraud Section (Andrew Weissmann), and Deputy Chief of the Fraud Section's FCPA unit (Patrick Stokes), among others. New leaders bring new perspectives, priorities and messages, and ' given the dearth of judicial oversight in FCPA enforcement ' it is critically important to understand what these new FCPA enforcers are saying about the future of FCPA enforcement.
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.
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.
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.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."