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Judge Chuang Is Right, Even Though He Felt Powerless To Act

Judge Chuang

Ever since non-prosecution agreements and deferred prosecution agreements have become a prominent feature of the Foreign Corrupt Practices Act landscape, I’ve noted that such alternative resolution vehicles are troubling for two distinct, yet equally problematic public policy issues.

In short, alternative resolution vehicles allow “under-prosecution” of egregious instance of corporate bribery, while at the same time facilitate the “over-prosecution” of business conduct.  (See here for the 2010 article “The Facade of FCPA Enforcement,” here for a prior post among others, and here for the 2015 article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement).

As to the former, kudos to Judge Theodore Chuang (D.Md.) for recognizing this as well.

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News Flash – Canadian Businesses Prefer Less Harsh Criminal Sanctions And Other Observations Relevant To Canada’s Movement Towards DPAs


These pages have closely followed Canada’s movement towards DPAs. (See here and here for prior posts including my submission to the Canadian government encouraging it to say “no” to DPAs).

As predicted in my 2010 article “The Facade of FCPA Enforcement” other nations would soon start to salivate over alternative resolution vehicles because they are easy, efficient and yield a greater quantity of enforcement actions allowing them to “catch up” to the U.S. in terms of “enforcing” bribery laws. This is precisely what happened in the U.K. and France and is happening in Australia and Canada.

Recently, the Canadian government released this document titled “Expanding Canada’s Toolkit to Address Corporate Wrongdoing: What We Heard.” As discussed below the document is laughable in certain respects and otherwise fails to capture several salient points relevant to Canada’s movement towards DPAs.

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Friday Roundup


Scrutiny alerts and updates, ripple, didn’t fit the narrative, too far into the weeds, the emerging global facade of enforcement and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates


Multilevel marketing companies Avon and Nu Skin Enterprises previously resolved FCPA enforcement actions concerning conduct in China. (See here, here, here, here and here for prior posts). Multilevel marketing companies USANA and Herbalife are currently under FCPA scrutiny for its business practices in China.

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Friday Roundup


Former SEC FCPA Unit Chief Kara Brockmeyer on declinations and voluntary disclosure, Wal-Mart’s global chief ethics and compliance officer on increased standardization in global anti-corruption efforts, scrutiny updates, French first, and for the reading stack.

It’s all here in the Friday Roundup.

Former SEC FCPA Unit Chief Kara Brockmeyer On Declinations and Voluntary Disclosure

Brockmeyer is profiled in this recent Corporate Crime Report Q&A. (See here for a recent FCPA Flash podcast with Brockmeyer).

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Make Your Voice Heard – Canada’s DPA Consultation Process


The Government of Canada has released this public consultation paper to consider the “possibility of introducing a Canadian deferred prosecution regime as an additional tool for prosecutors to be used in appropriate circumstances to address corporate crime.” The Government of Canada is seeking feedback until November 17th and I encourage you to make your voice heard.

Set forth below is the text of my submission to the Government of Canada urging it to reject DPAs. Among other things, my submission highlights that Canada’s justifications for DPAs are based on assumptions about DPAs in the U.S. that lack evidence or assumptions undermined by actual evidence.

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