In recent years, we have seen the DOJ expand its international focus, as it looks to punish foreign nationals, often for conduct that occurred almost entirely outside of the territorial borders of the United States. DOJ's eagerness, however, has not been matched by judicial enthusiasm concerning the extraterritorial application of U.S. law.
The Hoskins case highlighted the manner by which the DOJ (and the SEC, which has civil enforcement jurisdiction under the FCPA) can harness the common-law doctrine of agency to expand the reach of the statute.
Elections have consequences, and the election of President Trump has resulted in a significant shift in law enforcement priorities. Corporate enforcement activity is at lows not seen in decades, despite an overall increase in federal criminal cases. This is a product of a change in priorities, both in terms of types of offenses and types of offender. So, for the time being, there will be almost unprecedented opportunity to achieve favorable resolutions for corporate clients.
Business has gone global. So too has business-related crime. In the interconnected business environment, white-collar criminal investigations and prosecutions frequently present cross-border issues and affect U.S. foreign relations. Indeed, in some recent high-profile cases, the Trump administration has implied that it sees law enforcement — or the lack of it — as one of the tools in its foreign policy arsenal.
There is no one-size-fits-all approach to due diligence, but some methods are significantly cheaper and more aligned to the business than others.
In 2017, two cases illustrated that Delaware courts continue to impose exacting pleading burdens on Caremark claims, especially when plaintiffs say that they are excused from making a demand on the board before suing derivatively.
Discussion of two significant rulings.
What Can We Tell So Far?
How can companies plan for enforcement under the Trump administration? Here are five areas of compliance to consider.
Analysis of a case in which a German national admitted to taking part in a 2001 to 2004 scheme to pay roughly $3 million in bribes to Haitian officials in return for favorable treatment from Teleco, a state-owned telecommunications company.
There are a few early signs that the Trump administration will continue to hold companies to the “way of compliance.” But after the first five months of his presidency, there are still questions about where enforcement is heading in specific compliance areas.
