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Acting Assistant AG Blanco On Foreign Law Enforcement Cooperation

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Acting Assistant Attorney General Kenneth Blanco recently delivered this speech which focused largely on foreign law enforcement cooperation in bribery investigations. The bulk of the speech concerned U.S. – Brazil cooperation with portions also dedicated to the DOJ’s Kleptocracy Asset Recovery Initiative.

In his speech, Blanco used much of the same rhetoric as prior DOJ officials have in talking about bribery and corruption and once again the notion that the U.S. will “push[] forward hard against corruption, wherever it is” is subject to interpretation.

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

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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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DOJ Refuses To Answer Basic Factual Questions Regarding Its Recent FCPA Enforcement Actions

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“Greater transparency benefits everyone. The Criminal Division stands to benefit from being more transparent ..” (DOJ Assistant Attorney General, April 17, 2017).

As highlighted in this post, in April a high-ranking DOJ enforcement official stated that it is the DOJ’s “intent … for our FCPA investigations to be measured in months, not years.”

For those interested in holding FCPA enforcement officials accountable for their public statements, this requires a willingness by the DOJ to provide the public information that allows this occur.

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Nearly 20 Corporate FCPA Enforcement Actions By The DOJ, Approximately $1.4 Billion Collected, And Not One Company Employee Has Been Charged With FCPA Offenses By The DOJ

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As highlighted here, nearly two years ago the DOJ released the so-called Yates Memo, technically a policy memo titled “Individual Accountability for Corporate Wrongdoing.”

There was really nothing new in the Yates Memo as it continued the DOJ’s rhetoric about the importance of individual prosecutions. Specifically, the Yates Memo repeated the following DOJ rhetoric:

“One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.”

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The Non-Story Of Hui Chen Leaving Her Contract Consulting Expert Position At The DOJ

Non-Story

In this recent podcast, former DOJ contract consulting expert Hui Chen says that her first draft of the February 2017 “Evaluation of Corporate Compliance Programs” policy document was dated January 21, 2016 but the Obama DOJ never publicly released the document. She also says that DOJ prosecutors don’t even read the compliance regulations they are subject to.

From my perspective, the rest of the extensive – often over-the-top and often misleading – media coverage concerning Chen leaving her contract consulting expert position at the DOJ (which she began during the Obama administration) because she has strong opinions about the Trump administration and in her words “I want to help elect candidates who stand for [values she shares], and [she] cannot do that while under contract with the Criminal Division due to Hatch Act restrictions” is a non-story.

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