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DOJ Announces A “Revised FCPA Corporate Enforcement Policy”

Justice Dept

One of the best things ever written about the FCPA was penned nearly 35 years ago 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.”

Earlier today, the Foreign Corrupt Practices Act space once again witnessed a government of individuals rather than law as the DOJ announced yet another non-binding FCPA enforcement policy document.

Several forthcoming posts will examine in greater detail the “revised FCPA corporate enforcement policy”, but for now set forth below are the relevant portions of Deputy Attorney General Rod Rosenstein’s speech. (See here for the actual new policy in the U.S. Attorneys’ Manual. Note: the new policy is 9-47.120, the other FCPA portions in the USAM have been there for years).

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Friday Roundup

Roundup

Funny headline, just plain silly, new SEC FCPA Unit Chief, parallel, scrutiny alerts and updates, company continues to “boil the ocean,” and ISO 37001 related. It’s all here in the Friday Roundup.

Funny Headline

This Global Investigations Review post contains the headline “Former FCPA Unit Chiefs Defend the ‘Revolving Door’”.

That’s funny. I suppose if I moved from a government enforcement attorney position to a multimillion dollar position in FCPA Inc. defending companies against the enforcement climate I helped create, I might defend the practice as well.

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An Article Based On A Fallacy

Fallacy

Recently on the FCPA Blog, Professor Andy Spalding touted his article “Restoring Pre-Existing Compliance Through the FCPA Pilot Program.”

I’ve previously wrote about the DOJ’s FCPA Pilot Program in April 2016 soon after it was released (see here for the article “Grading the DOJ’s FCPA Pilot Program”) and am no big fan of the Program for the reasons discussed in the article.

Moreover, as highlighted in this prior post, given the DOJ’s self-described “principal goal” of the Program – that is “to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self disclose FCPA-related misconduct,” the Program has been an utter failure in that the DOJ has self-identified seven corporate matters as being resolved pursuant to / or consistent with the Pilot Program: (Nortek, Akamai Technologies, Johnson Controls, HMT LLC, NCH Corp, Linde Gas, and CDM Smith), yet none of these matters (zero, zilch, nada) have involved related prosecution of individuals.

In any event, the apparent thesis of Spalding’s article seems to be that the Pilot Program is step back from prior FCPA guidance such as the 2012 FCPA Guidance because the Pilot Program is silent regarding pre-existing compliance. However, any reasonably informed FCPA practitioner will recognize upon reading the full article that this apparent thesis is based on a fallacy.

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Friday Roundup

Roundup

Across the pond, the big picture, ripple, a muddy mess, to FCPA Inc., scrutiny alert, silly and erroneous, misleading, ISO 37001 related, and for the reading stack.

It’s all here in the Friday roundup.

Across the Pond

In this recent speech, David Green (Director of the U.K. Serious Fraud Office) said the U.K. Bribery Act is “regarded as a gold standard internationally” and, as further proof that so-called enforcement competition does exist, he stated:

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Friday Roundup

Roundup

Overhead at the town hall meeting, sentenced, investigative fees, “fake” FCPA news, fairly obvious, hook-line-and-sinker, fore, pardon me for being a stickler, ISO37001 related, and purely speculative and not credible.

It’s all here in the Friday roundup

Overhead at the Town Hall Meeting

I can’t imagine that the FCPA is a frequent topic of discussion at New England town hall meetings. But as highlighted here it was recently a topic of discussion as “the new operator of a popular ski resort in New Hampshire [Och-Ziff]  faced off against concerned residents, some of whom fear the company’s past legal troubles raise doubts about whether it was the right choice to oversee the facility.”

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