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In-Depth On The Second Circuit’s Recent HSBC Decision

Judicial Decision

This February 2016 post awarded an FCPA Professor Apple Award to then U.S. District Court Judge John Gleeson (E.D.N.Y.) for championing transparency and not acquiescing in secret criminal law enforcement by finding that an HSBC Monitor Report (a condition of a deferred prosecution agreement) was “a judicial record, and that the public has a First Amendment right to see the Report.”

In this recent decision a Second Circuit panel consisting of Judge Katzmann, Judge Pooler and Judge Lynch (the first two President Clinton appointees and the later a President Obama appointee), reversed and held that the “Monitor’s Report is not a judicial document because it is not now relevant to the performance of the judicial function.”

The Second Circuit opinion is troubling / interesting on many levels.

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FCPA Flash Podcast – A Conversation With Richard Grime (Former Assistant Director of SEC Enforcement) Regarding FCPA Enforcement

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash podcast episode is a conversation with Richard Grime (Gibson, Dunn & Crutcher and former Assistant Director of SEC Enforcement) and is a must listen if you want to hear informed and candid commentary about the current FCPA enforcement landscape from someone who used to enforce the FCPA.

During the podcast, Grime discusses: (i) reasons for the general increase in FCPA enforcement (among the reasons he mentions is “the government has realized this is a money-winner”; (ii) whether FCPA enforcement, including the internal control’s provisions, has been pushed beyond the breaking point (in Grime’s words yes it has and “almost any conduct becomes subject to an enforcement vehicle”); and (iii) whether long, drawn-out FCPA investigations can be avoided.

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Australia Should Say No To DPAs For Foreign Bribery Offenses

no2

The Australian Attorney General’s Department (AGD) recently released this public consultation paper in which the Australian Government seeks “a more effective and efficient response to corporate crime by encouraging greater self-reporting by companies” and a “key focus of this consideration is a possible deferred prosecution agreement (DPA) scheme.”

Set forth below is the text of my letter to the AGD urging it to reject DPAs.

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FCPA Flash – A Conversation With Judy Krieg Regarding The U.K.’s DPA Regime – Is It Really A Better Mousetrap?

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Judy Krieg (a U.S. educated lawyer in the U.K. offices of Shepherd and Wedderburn). Krieg recently authored a post titled “UK DPAs – Have We Really Built a Better Mousetrap?” that caught my eye and in the podcast Krieg: discusses the U.K.’s emerging DPA regime; answers the above question; explains why certain recent UK DPAs “have had their accuracy and factual underpinnings questioned;” and opines whether DPAs in the U.K. going forward will be the rule rather than the exception.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

Checking In Down Under

Australia

Today’s post is from Robert Wyld (Partner, Johnson Winter & Slattery in Sydney). Wyld is the Australia Expert for FCPA Professor.

There have been a number of important developments in Australia over the last few months. The key issues include: (i) false accounting prosecutions arising out of AFP Leighton Holdings investigation; (ii) ASIC’s penalty prosecutions against former senior AWB Ltd executives continue; (iii) proposed model for a Commonwealth Deferred Prosecution Agreement scheme; (iv) proposed amendments to the Commonwealth foreign bribery offence and introduction of new corporate offence of failing to prevent bribery; and (v) AFP and CDPP foreign bribery initiatives

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