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On The Intersection Of Antitrust Enforcement And Corruption

intersection

Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.

Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.

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Mulling Over Moser’s Recent FCPA Remarks

people thinking

Recently Sandra Moser (Principal Deputy Chief, Fraud Section, DOJ) delivered these remarks (provided to me by the DOJ) at an event titled “Global Forum on Anti-Corruption in High Risk Markets.”

This post provides commentary on the remarks ranging from how best to incentivize compliance, the U.S. “piling” on foreign law enforcement actions, individual accountability, DOJ transparency in resolving FCPA enforcement actions, and the DOJ’s FCPA Pilot Program.

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The Current Failure Of The FCPA Pilot Program To Accomplish One Of The DOJ’s Stated “Main Goals”

failure

As highlighted in the article “Grading the DOJ’s FCPA Pilot Program” and this post, it is difficult (if not impossible) to empirically assess whether one of the Pilot Program’s goals (to increase corporate voluntarily disclosures) is actually working. Simply put, many business organizations were voluntarily disclosing prior to the April 2016 Pilot Program and the precise question after the Pilot Program is whether the program is motivating voluntary disclosures to a greater extent than prior to the program.

Yet as highlighted below, it is possible to assess whether another of the DOJ’s stated “main goals” of its Pilot Program is working and at present the undeniable answer is that, as measured against this “main goal,” the Pilot Program is currently failing.

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Time Out – The Obama DOJ Invented “Declinations With Disgorgement,” Drafted The Boilerplate Language, And Used NPAs 22 Times

TIme Out

Some FCPA commentators are either lacking in historical perspective or just spinning narratives to fit their beliefs.

Either one is troubling and from time-to-time someone in the FCPA space has to call a time-out.

This recent post from Matt Kelly who runs a site called Radical Compliance takes issue with the two DOJ corporate FCPA enforcement announced thus far in the Trump administration. Nothing wrong with this as FCPA Professor covered the Linde Gas and CDM Smith “declination with disgorgement” enforcement actions as well (see here, here, here and here for prior posts). And to be sure, I’ve criticized these form of FCPA resolution vehicles invented by the Obama DOJ (see here) as well as non-prosecution agreements used by the Obama DOJ to resolve alleged instances of corporate FCPA liability. In fact, I’ve long argued that NPAs (and DPAs) should be abolished in the FCPA context.

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Friday Roundup

Roundup

Quotable, FCPA issues at City Hall, and for the reading stack. It’s all here in the Friday roundup.

Quotable

In this recent post titled “Judicial Scrutiny of Corporate Monitors: Additional Uncertainty for FCPA Settlements?” Debevoise attorneys Andrew Levine, Philip Rohlik and Michael Gramer note:

“Like many other complex corporate criminal matters, FCPA matters largely get resolved without meaningful judicial oversight. […] In complex cases, corporate criminal enforcement can follow the largely consensual process that has evolved in the FCPA arena.  After a long period of investigation, in which a company often cooperates, the company and DOJ negotiate a resolution, based on legal theories and facts largely determined by the DOJ.

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