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Friday Roundup

Roundup

Asset recovery, scrutiny alerts and updates, nominate, and for the reading stack. It’s all here in the Friday roundup.

Asset Recovery

FCPA enforcement is not the only prong of the DOJ’s bribery and corruption fight.

Asset recovery – part of the DOJ’s so-called Kleptocracy Initiative – is another prong and recently the DOJ announced its largest action ever brought under the program. As stated in this release:

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Must Read – Former Deputy Attorney General David Ogden’s Speech Criticizing The DOJ’s Leverage-Based Enforcement Approach

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How many articles, speeches or commentary by former high-ranking DOJ officials does it take to realize that the DOJ is frequently misguided?

The latest former high-ranking DOJ official to criticize the DOJ’s current approach to investigating and resolving alleged legal violations by business organizations is David Ogden. Currently a partner at WilmerHale, Ogden previously was the DOJ Deputy Attorney General and prior to that a DOJ Assistant Attorney General.

Touching upon many of the same issues I have been writing about for years – from my 2010 article “The Facade of FCPA Enforcement,” to my 2010 Senate FCPA testimony, to my recent article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” in this recent speech Ogden criticizes the DOJ’s “leverage-based” enforcement approach.

The speech is a must read and is excerpted below. Tomorrow’s post will be an episode of the FCPA Flash podcast in which Ogden discusses various aspects of the speech.

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Former Deputy AG Larry Thompson Blasts DOJ Policies

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Few people have encountered the corporate criminal law enforcement (including in the FCPA context) and compliance from three vantage points: enforcer, in-house counsel, and lawyer in private practice. Larry Thompson is one of them having served as DOJ Deputy Attorney General, a lawyer in private practice, and a general counsel of a major multinational company (PepsiCo).

Thus, when Thompson speaks or writes about the Foreign Corrupt Practices Act or related topics we should pay attention.

Recently Thompson testified at a House hearing and stated that “the shared commitment [between the government and industry] to prevention and incentivizing investment in compliance is not the current reality.”

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Friday Roundup

Roundup

Assistant Attorney General Leslie Caldwell on the DOJ’s FCPA Pilot Program, scrutiny alerts and updates, quotable and for the reading stack. It’s all here in the Friday roundup.

Caldwell on the FCPA Pilot Program

This article contains a recent Q&A with Assistant Attorney General Leslie Caldwell about the DOJ’s FCPA Pilot Program.

After reading the below excerpts, you might also want to read the article “Grading the DOJ’s FCPA Pilot Program.”

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Yates Defends The “Yates” Memo

Sally Yates, during her confirmation hearing before the Senate Judiciary Committee to be Deputy Attorney General at the U.S. Department of Justice.  March 24, 2015.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

As highlighted in this prior post, in September 2015 the DOJ released this memo authored by DOJ Deputy Attorney General Sally Yates titled “Individual Accountability for Corporate Wrongdoing” (the so-called “Yates” Memo).

The “Yates” Memo was met with mounds of criticism including from former high-ranking DOJ officials. Against this backdrop Yates, not surprisingly defended her namesake memo.

The latest defense occurred last week as Yates delivered this speech at the New York City Bar Association White Collar Crime Conference.  Yates focused her remarks on “why we did it and how it’s working so far in practice.”

Her remarks focused on individually accountability, cooperation, and how the Yates Memo is working in practice. As to this later issue, Yates, not surprisingly, stated that the memo is “causing positive change within companies.” This claim of course is difficult, if not impossible, to verify empirically.

Yates also touched upon the DOJ’s recent FCPA “Pilot Program.” (See here for the article “Grading the DOJ’s FCPA Pilot Program”).

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