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Bill Seeks To Transfer Pharma FCPA Civil Settlement Amounts To Pediatric Disease Research

gmiller

Childhood cancer and other rare pediatric diseases are heartbreaking.

But should certain FCPA settlement amounts fund pediatric disease research?

Representative Jennifer Wexton (D-Va) thinks so as she, along with co-sponsors  Tom Cole (R-OK), Peter Welch (D-VT) and Gus Bilirakis (R-FL), recently introduced H.R. 6556 – a bill that seeks to amend the FCPA’s anti-bribery provisions by transferring FCPA civil settlement amounts by pharmaceutical companies to pediatric disease research. The bill is titled the Gabriella Miller Kids First Research Act 2.0. Miller (pictured – died of cancer in 2013 at the age of 10).

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Friday Roundup

Roundup

Oops, scrutiny alert, and does Senator Rubio understand the FCPA? It’s all here in the Friday roundup.

Oops

It’s probably not a good idea for Department of Justice officials to boast about Foreign Corrupt Practices Act trial court verdicts when post-trial motions are pending.

Here is what Assistant Attorney General Benczkowski said about the Hoskins FCPA case on December 4, 2019.

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Taxing FCPA Enforcement

tax

This previous post discussed a bill titled “Countering Russian and Other Overseas Kleptocracy Act” (“CROOK Act”) introduced in the House of Representatives.

The bill seeks “an amount equal to five percent of each civil and criminal fine and penalty imposed pursuant to actions brought under the FCPA … that would otherwise be deposited in the Treasury of the United States” to fund the Anti-Corruption Action Fund.”

Recently, a similar bill – also titled “Countering Russian and Other Overseas Kleptocracy (“CROOK Act”) – was introduced by Senator Ben Cardin (D-MD) and Senator Roger Wicker (R-MS). (See here).

As explained below, the Senate version of the CROOK Act seeks to tax certain FCPA enforcement actions (those in which total criminal fines and penalties are in excess of $50 million) by imposing an “additional prevention payment equal to $5 million which shall be deposited in the Anti-Corruption Action Fund.”

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Flashback To The Mid-1970’s Regarding The Demand Side

1970s

Previous posts here and here discussed the recently introduced Foreign Extortion Prevention Act which seeks to “prohibit a foreign official from demanding a bribe” by amending – not the FCPA – but rather 18 USC 201 (the so-called domestic bribery statute).

In introducing the bill, Representative John Curtis (R-UT), one of the co-sponsors, stated. “Currently, a business being extorted for a bribe can only say ‘I can’t pay you a bribe because it is illegal and I might get arrested.’ This long-overdue bill would enable them to add, ‘and so will you.”

This remark caused a mid-1970’s flashback because, as highlighted below, it largely mirrors the policy rationale of those who supported addressing the so-called foreign corporate payments through a disclosure approach and not the criminalization approach that ultimately became the Foreign Corrupt Practices Act.

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The Foreign Extortion Prevention Act:  A Response to Professor Koehler

extortion

Today’s post is from Baker & McKenzie attorneys Tom Firestone and Maria Piontkovska.

As the authors of one of the articles that contributed to the Foreign Extortion Prevention Act (“FEPA” or the “Act”), we would like to address some of the points made in Professor Koehler’s post on the FCPA Professor of August 5 entitled “Bill Seeks To Capture The Demand Side of Foreign Bribery Through Amendment to 18 USC 201.” (See here)

As an initial matter, we applaud Professor Koehler’s longstanding attention to this issue and understand that despite his criticisms of the text of the bill, Professor Koehler supports the concept of criminalizing the demand side of bribery.  He just believes that this should be accomplished through an amendment to the FCPA, rather than to 18 USC §201, as the Act would do and as we suggested in our original article.  In support of this argument, he raises several questions about FEPA.

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