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Bill Seeks To Capture The Demand Side Of Foreign Bribery Through Amendment To 18 USC 201

Capital Hill

The Foreign Corrupt Practices Act only captures one participant in a bribery scheme (the so-called supply side) in what is nearly always a two participant scheme. For more on this dynamic, see this recent FCPA Flash podcast episode with Tom Firestone (Baker & McKenzie) for how the demand side of bribery can be best addressed from a legal and policy perspective.

This bill titled “Foreign Extortion Prevention Act” recently introduced in the House by Representatives Sheila Jackson Lee (D- TX), John Curtis (R-UT), Tom Malinowski (D- NJ), and Richard Hudson (R-NC) seeks to “prohibit a foreign official from demanding a bribe.”

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CROOK Act Seeks To Fund An Anti-Corruption Action Fund With 5% Of “Each Civil And Criminal Fine And Penalty Imposed Pursuant To Actions Brought” Under The FCPA

Capital Hill

Recently, Representative Bill Keating (D-Mass.) and Representative Brian Fitzpatrick (R-Pa.) introduced a bill titled “Countering Russian and Other Overseas Kleptocracy Act” (“CROOK Act”).

As explained below, the Act 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.”

As further explained below, the Act demonstrates a poor understanding of FCPA enforcement actions.

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“Rigged Facts”

jayapalwarren

Recently Senator Elizabeth Warren (D-MA) and Congresswomen Pramila Jayapal (D-WA) released this document titled “Rigged Justice 2.0 – Government of the Billionaires, by the Billionaires and for the Billionaires.”

The document is by no means Foreign Corrupt Practices Act specific, but the FCPA is mentioned in the document in a way that I suggest another title for the document should be: “Rigged Facts and Selectively Omitted Information.”

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Understanding Odebrecht: Lessons For Combating Corruption In The Americas

oder

Recently, the House Foreign Affairs Committee held a hearing titled “Understanding Odebrecht: Lessons for Combating Corruption in the Americas” in reference to the 2016 Foreign Corrupt Practices Act and related enforcement action against Brazil-based Odebrecht and its affiliate Braskem (see here and here for prior posts).

Granted, Congress often holds hearings with aspirational titles, but after watching the hearing I am not sure I came any closer to “understanding” Odebrecht or came away with any “lessons for combating corruption in the Americas.”

Nevertheless, set forth below are a few observations from the hearing.

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House Holds Hearing On FCPA Relevant Issues

Capital Hill

Last week, the House Subcommittee on Capital Markets, Securities, and Investment held a hearing titled “Ensuring Effectiveness, Fairness, and Transparency in Securities Law Enforcement.”

Several of the issues discussed at the hearing were Foreign Corrupt Practices Act relevant such as disgorgement, statute of limitations and tolling agreements, the long time periods associated with issuer scrutiny, and “regulation by enforcement.”

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