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Sure, Non-Profits Have A Role To Play, But Being Informed, Impartial And Responsible Is Important Too

September 20, 2017

This recent guest post on the FCPA Blog by the Executive Director of the U.K. Chapter of Transparency International stated that not-for-profits have an “important role” to play in “the crowded anti-bribery and compliance space.”

True, non-profits have an important role to play and previous posts (here and here among others) have noted the good work of certain non-profits in raising awareness of bribery and its effects and seeking to reduce bribery and corruption around the world.

However, along with this important role comes an implicit duty to be informed, impartial and responsible and this post highlights how certain non-profits in the bribery and corruption space seemingly fail these important metrics.

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As Is Fairly Typical, Uber’s FCPA Scrutiny Expands

September 19, 2017

All instances of Foreign Corrupt Practices Act scrutiny have a “point of entry” – an occurrence which gives rise to initial FCPA scrutiny.

From there, FCPA scrutiny often expands into other business dealings, other countries, etc. This dynamic is a major reason why pre-enforcement action professionals fees and expenses are often the largest financial ramification of FCPA scrutiny, exceeding (often by multiples) settlement amounts in an actual FCPA enforcement action.

Approximately three weeks ago, it was reported (see here) that Uber Technologies was under FCPA scrutiny.

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An FCPA Enforcement Action Involving A U.S. Government Aid Program (With A Few Ironies)

September 19, 2017

[This post is part of a periodic series regarding “old” FCPA enforcement actions]

Yesterday’s post highlighted a number of Foreign Corrupt Practices Act enforcement actions in connection with U.S. government aid or assistance programs.

This post goes into more detail regarding the DOJ’s 2002 FCPA enforcement action against Richard Pitchford (the Vice President and Country Manager in Turkmenistan for the Central Asia American Enterprise Fund (CAAEF), an entity wholly funded by a $150 million appropriation from Congress pursuant to the Support for Eastern European Democracy Act of 1989 and the Freedom for Russia and Emerging Eurasian Democracies and Open Market Support Act of 1992).

One of the ironies with this enforcement action (there is another highlighted at the end of the post) is that prior to the enforcement action Pitchford was quoted as saying: “The potential in Central Asia is tremendous, especially in Turkmenistan because of its proximity to Turkey and the Persian Gulf. What’s missing is government political will to do the job. There’s no doubt this is a dictatorship and from top to bottom, it’s corrupt.” A short time later, Pitchford himself would be prosecuted for corruption.

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The U.S. Government Bears Some Responsibility For Certain Root Causes Of Foreign Bribery And Corruption

September 18, 2017

This post is not about the U.S. government’s two-pronged approach to fighting bribery and corruption: Foreign Corrupt Practices Act enforcement and the DOJ’s so-called Kleptocracy Asset Recovery Initiative.

Rather, this post highlights this dandy op-ed by Jay Newman recently published in the Wall Street Journal to explore a picture issue previously explored on these pages and that is whether the U.S. government bears some responsibility for certain root causes of foreign bribery and corruption.

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Deputy Attorney General Rosenstein Signals Change Is Coming To DOJ Policy Regarding Corporate Prosecutions

September 15, 2017

One of the best things ever written about the FCPA was penned by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

As highlighted in this prior post, the above was written in 1982, but it remains true today. Indeed, one disturbing dynamic of DOJ Fraud Section policy making is that it is largely driven by individuals – individuals who stay at the DOJ relatively briefly. Most recently, it was the 2015 “Yates Memo,” before that it was the 2008 “Filip Memo,” prior to that it was the 2006 “McNulty Memo,” prior to that it was the 2003 “Thompson Memo,” and prior to that it was the 1999 “Holder Memo.”

As highlighted in this report, yesterday Deputy Attorney General Rod Rosenstein signaled that change is yet again coming to DOJ policy regarding corporation prosecutions.

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