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Assistant Attorney General Benczkowski On Corporate Compliance And His Odd Use Of The Term “Deterrence”

November 11, 2019

Last week Assistant Attorney General Brian Benczkowski gave this speech at the 20th Annual Pharmaceutical and Medical Device Compliance Congress – an event frequently on the DOJ’s speech calendar.

As highlighted below, Benczkowski delivered typical Department of Justice corporate compliance talking points.

However, what stood out in his speech was his repeated odd use of the word “deterrence.”

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This Week On FCPA Professor

November 9, 2019

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor.

As discussed in this post, the Supreme Court has agreed to hear another SEC disgorgement case. Although not an FCPA matter, the decision could have a meaningful impact on the SEC’s frequent disgorgement remedy in FCPA enforcement actions.

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Hoskins Found Guilty – Appeal Likely

November 8, 2019

As summarized in this recent post, in 2013, the DOJ criminally charged Lawrence Hoskins (a United Kingdom national and former senior vice president for the Asia region for France-based Alstom) with conspiracy to violate the FCPA’s anti-bribery provisions among other charges. The conduct at issue alleged occurred between 2002 and 2004. Six years after being charged and approximately 15 years after the alleged conduct at issue took place, the Hoskins trial began in late October.

Earlier today, the DOJ announced that Hoskins “was found guilty … for his role in a multi-year, multimillion-dollar foreign bribery scheme and a related money laundering scheme.”

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The Trial Penalty

November 8, 2019

Alan Dershowitz, a well-known law professor and commentator, recently penned this piece published in the Wall Street Journal titled “Most Plea Bargains Are Unconstitutional.” Deroshowitz writes:

“When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual—even by the Supreme Court. […] In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial.”

As discussed below, one of the more egregious examples of the so-called trial penalty occurred in the FCPA context.

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Does The SEC Really Even Need A Specific FCPA Unit?

November 7, 2019

In fiscal year 2010, the Securities and Exchange Commission created a specialized unit (one of only five in its enforcement division “dedicated to particular highly specialized and complex areas of securities law“) devoted to enforcing the FCPA.

The question arises however: does the SEC really even need a specific FCPA unit?

The below post highlights how, based on the SEC’s own enforcement statistics, FCPA enforcement actions comprise a minuscule percentage of its overall enforcement actions as well as other quantitative and qualitative factors relevant to the question posed.

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