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DOJ Announces A “Revised FCPA Corporate Enforcement Policy”

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One of the best things ever written about the FCPA was penned nearly 35 years ago by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

Earlier today, the Foreign Corrupt Practices Act space once again witnessed a government of individuals rather than law as the DOJ announced yet another non-binding FCPA enforcement policy document.

Several forthcoming posts will examine in greater detail the “revised FCPA corporate enforcement policy”, but for now set forth below are the relevant portions of Deputy Attorney General Rod Rosenstein’s speech. (See here for the actual new policy in the U.S. Attorneys’ Manual. Note: the new policy is 9-47.120, the other FCPA portions in the USAM have been there for years).

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SEC Co-Director Of Enforcement Peikin Reflects On The Past, Present, And Future Of The SEC’s Enforcement Of The FCPA

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Earlier today, Steven Peikin (Co-Director of the SEC’s Enforcement Division) delivered this speech at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Peikn’s remarks.

But first a few comments.

In talking about the past, I wonder if Peikin is even aware of the following historical fact. As highlighted in the article “The Story of the Foreign Corrupt Practices Act,” the SEC never wanted any role in enforcing the FCPA’s anti-bribery provisions. However, congressional leaders at the time of the FCPA’s enactment had a high level of distrust with the Justice Department and insisted, against the SEC’s objections both when the FCPA was enacted in 1977 and when it was first amended in 1988, that it play a role in enforcing the FCPA’s anti-bribery provisions.

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Acting Assistant Attorney General Blanco Delivers FCPA Speech

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Today, Acting Assistant Attorney General Kenneth Blanco delivered these remarks at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Blanco’s remarks.

But first a few comments.

In his speech, Blanco states that it “is astonishing to think about what the FCPA and OECD Anti-Bribery Convention have achieved in a relatively short period of time.” That of course depends on what the word “achieve” means. On one level, has the FCPA really “achieved” (after 40 years – not exactly a “relatively short time period”) its objective of reducing bribery given that there are more enforcement actions, not fewer, as the FCPA has matured?

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Deputy AG Rosenstein – “We Should Never Use The Threat Of Federal Enforcement Unfairly To Extract Settlements”

rosenstein

Yet another speech by Deputy Attorney General Rod Rosenstein to pass along (see here and here for other recent speeches).

Yesterday, Rosenstein deliver this morning keynote address at the U.S. Chamber Institute for Legal Reform. Among other things, Rosenstein stated: “Corporate enforcement and settlement demands must always have a sound basis in the evidence and the law. We should never use the threat of federal enforcement unfairly to extract settlements.”

Was this merely an unobjectionable forward-looking statement or perhaps a subtle criticism of the Obama administration during which certain people felt that the DOJ often did just that? For instance, see here for a prior post highlighting former Deputy AG David Ogden’s speech criticizing the DOJ’s leverage-based enforcement approach as well as this FCPA Flash podcast episode during which Ogden further elaborates on the issues.

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FCPA Flash – A Conversation With Claudius Sokenu

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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 Claudius Sokenu. Sokenu is among a small number of individuals who has experienced the FCPA from three different vantage points. First, Sokenu was Senior Counsel at the SEC’s Enforcement Division where he worked on FCPA matters. Second, Sokenu was a partner at various leading law firms where his practiced focused on the FCPA. Currently, Sokenu is Deputy General Counsel, Global Head of Litigation, Global Head of Compliance, and Global Head of Legal-Supply Chain at Andeavor (a Texas-based refining, marketing and logistics company).

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