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Friday Roundup

Roundup

Scrutiny alerts and updates, sentenced, asset recovery, to FCPA Inc., across the pond, quotable and for the reading stack.

It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

Grupo Televisa

This Wall Street Journal article concerns Grupo Televisa SAB, a Mexican broadcaster with shares traded on the NYSE. According to the article:

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Friday Roundup

Roundup

Positive feedback, guilty plea, scrutiny alerts and updates, an instrumentality with mouse ears?, rant alert, quotable, and for the reading stack. It’s all here in the Friday roundup.

Positive Feedback

In running FCPA Professor for nearly seven years, I often feel like the captain of a ship in a wide, vast ocean. My metrics tell me people are reading, but feedback tends to be sparse. I take this as a good sign given that negative feedback is more likely to occur than positive feedback.

Thus, I appreciated much positive feedback in connection with the recent post “Denied by the DOJ.”

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DOJ Determines That Biomet Has Breached Its Prior FCPA DPA

breach

The article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement” chronicles the DOJ’s use of alternative resolution vehicles to resolve alleged instances of FCPA violations by business organizations.

In doing so, the article highlights how the DOJ has gone beyond justifying its extensive use of NPAs and DPAs to championing their use to resolve alleged instances of corporate crime. Who can forget former DOJ Assistant Attorney General Lanny Breuer’s assertion that such agreements “have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe.”

Breuer further stated: “The result has been, unequivocally, far greater accountability for corporate wrongdoing — and a sea change in corporate compliance efforts.”

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Friday Roundup

Roundup

A public service announcement, Wal-Mart’s pre-enforcement action professional fees and expenses, scrutiny alert, happenings in Bermuda, a fee dispute, quotable, a useful timeline, for the reading stack, and good for a few chuckles. It’s all here in the Friday roundup.

A Public Service Announcement

Section 5 of the Federal Trade Commission Act requires the disclosure of a material connection between an advertiser and an endorser when the relationship isn’t otherwise apparent to consumers. As the FTC has made clear, the law applies to bloggers.

Certain members of the FCPA’s blogosphere (who frequently write about compliance best practices, transparency, conflicts of interest and related topics) may want to take notice and act accordingly.

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Potted Plant: DC Circuit Concludes That Trial Court Judges Have No Authority To Reject DOJ DPAs

potted plant

Given the prominence of DPAs (and NPAs) in resolving corporate FCPA enforcement actions, for over a year FCPA Professor has been closely following U.S. v. Fokker Services (a case outside the Foreign Corrupt Practices Act context involving criminal charges against Fokker to unlawfully export U.S. origin goods and Services to Iran, Sudan, and Burma).

In resolving the case, the DOJ and Fokker agreed to an 18 month DPA in which the company agreed to forfeit $10.5 million and to pay an additional $10.5 million in a parallel civil settlement.

No so fast, Judge Leon (D.D.C.) said in rejecting the DPA in February 2015 (see here for the prior post). In pertinent part, Judge Leon stated:

“Both of the parties argue, not surprisingly, that the Court’s role is extremely limited in these circumstances.  They essentially request the Court to serve as a rubber stamp […].  Unfortunately for the parties, the Court’s role is not quite so restricted. […] “One of the purposes of the Court’s supervisory powers, of course, is to protect the integrity of the judicial process.” When, as here, the mechanism chosen by the parties to resolve charged criminal activity requires Court approval, it is the Court’s duty to consider carefully whether that approval should be given. […] I do not undertake this review lightly.  I am well aware, and agree completely, that our supervisory powers are to exercised ‘sparingly, and I fully recognize that this is not a typical case for the use of such powers.  The defendant has signed onto the DPA and is not seeking redress for an impropriety it has identified.  But the Court must consider the public as well as the defendant.  After all, the integrity of judicial proceedings would be compromised by giving the Court’s stamp of approval to either overly-lenient prosecutorial action, or overly-zealous prosecutorial conduct.” […] The Court concludes that this agreement does not constitute an appropriate exercise of prosecutorial discretion and I cannot approve it in its current form.”

Both the DOJ and Fokker Services appealed Judge Leon’s denial of the DPA and the DOJ basically told the court “hands off our DPAs” (see here for the prior post).

During the September 2015 oral argument before the DC Circuit, the court seemed to have some serious concerns regarding the substantive and procedural arguments of the parties.

However, earlier this week in this decision, the DC Circuit (in an opinion authored by Judge Sri Srinivasan) concluded that Judge Leon should have been a potted plant because trial court judges lack authority to reject DOJ DPAs.

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