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Over the past few years, the U.S. Department of Justice (DOJ) has taken notable steps to advance the axiom that the business community and law enforcement are “partners, not adversaries.” In November 2017, DOJ promulgated its Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy, which is incorporated into the Justice Manual (formerly known as the United States Attorneys Manual). The FCPA Corporate Enforcement Policy was intended to promote fairness and predictability in FCPA corporate enforcement and to incentivize self-reporting. Through a series of policy announcements, the DOJ expanded and clarified the reach of the FCPA Corporate Enforcement Policy — first as “nonbinding guidance” in corporate criminal cases outside the context of the FCPA, and later as applied to successor FCPA liability in mergers and acquisitions (M&A).
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By Jacqueline C. Wolff
Something Old, Something New, Something Borrowed, Something Blue
this second edition contains some new “hypotheticals” — facts of actual cases the DOJ finds important enough to focus on — and, in keeping true to its name, has included additional resources and links for chief compliance officers looking to design and audit their companies’ anticorruption compliance programs.
By Robert J. Anello and Richard F. Albert
United States v. Napout
The U.S. government’s lead role in the prosecution of corruption within the Zurich-based FIFA may be a paradigmatic example of U.S. law enforcement acting as the world’s policeman. If corruption is based on foreign executives violating their duties of loyalty to foreign private entities, how does that translate into a violation of U.S. criminal law? Does it matter that the conduct in which the foreign executive engaged — commercial bribery — may not be illegal under the law of the executive’s home country?
By Elkan Abramowitz and Jonathan S. Sack
This article discusses cases that have begun to address whether “official act” is an element in a private honest services fraud prosecution.
By Telemachus P. Kasulis
For a moment there, it really looked like it was going to happen. After a long and winding road, insider trading reform had reached the floor of the House of Representatives for a vote. The Insider Trading Prohibition Act (ITPA) had support on both sides of the aisle and on Dec. 5, 2019, the House voted to pass the ITPA. Then the bill went to the Senate and vanished. We should take this opportunity to learn what lessons we can from the successes and failures of the ITPA as a bill with an eye toward fashioning the best possible legislation next time — whenever that may be.