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Friday Roundup

Roundup

Clayton responds, from the dockets, Bitkower to FCPA Inc., and a student writing competition. It’s all here in the Friday roundup.

Clayton Responds

This previous post highlighted the FCPA portion of the recent confirmation hearing of SEC Chair nominee Jay Clayton. In follow-up written questions, Senator Sherrod Brown (D-OH) asked: “The Foreign Corrupt Practices Act (FCPA) forbids U.S. companies and their subsidiaries from paying foreign government officials to obtain or retain business. What is your specific plan for enforcement of the FCPA.”

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Additional Data Points Relevant To Brockmeyer’s Tenure As SEC FCPA Unit Chief

brockmeyer

Earlier this week, the SEC announced that its FCPA Unit Chief, Kara Brockmeyer, will soon be leaving.

Similar to prior DOJ/SEC press releases upon FCPA enforcement attorneys leaving the government, the SEC’s release largely defines Brockmeyer’s tenure in terms of quantity of enforcement actions brought and settlement amounts secured. (See here for a prior post discussing this dynamic). The vast majority of this FCPA enforcement, because of the prominence of SEC administrative actions as well as NPAs and DPAs, occurred in the absence of any judicial scrutiny.

This post highlights additional data points relevant to Brockmeyer’s tenure as SEC FCPA Unit Chief, a position she assumed in September 2011 after the SEC’s first formal FCPA Unit Chief Cheryl Scarboro departed (see here for the prior post).

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FCPA Flash Podcast – A Conversation With Former DOJ FCPA Chief Joseph Covington

FCPA Flash

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 Joseph Covington (Smith Pachter and former head of the DOJ’s de facto FCPA unit in the early 1980’s). The podcast is a must listen for anyone seeking a better understanding of the DOJ’s “early” enforcement of the FCPA. In the episode, Covington also offers a candid assessment of how FCPA enforcement has changed; whether the FCPA has been successful in achieving its objective of reducing bribery; and why he continues (see here for the prior FCPA Professor guest post) to support an FCPA compliance defense.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

Why Has The DOJ Stopped Civilly Enforcing The FCPA?

questions to ask

The Foreign Corrupt Practices Act specifically authorizes the DOJ to civilly (not just criminally) enforce the statute against non-issuers.

Indeed, between 1991 and 2001 approximately 35% of all DOJ corporate FCPA enforcement actions were civil actions. However, the last time the DOJ invoked this express statutory remedy was in 2001 and the question is posed: why has the DOJ stopped civilly enforcing the FCPA?

Make sure to read to the end of the post to hear the DOJ’s non-responsive answer to this question.

Perhaps instead of creating new ways to enforce the FCPA not even mentioned in the statute (such as non-prosecution agreements, deferred prosecution agreements and most recently declinations with disgorgements) the DOJ should go back to enforcing the FCPA in ways expressly authorized by Congress.

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FCPA Flash Podcast – A Conversation With Jay Darden Regarding DOJ FCPA Enforcement

FCPA Flash

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 Jay Darden (Paul Hastings and former Assistant Chief of the DOJ’s Fraud Section). In the episode, Darden discusses what FCPA practitioners need to understand about being a DOJ FCPA attorney and along the same lines what DOJ FCPA enforcement attorneys need to understand about being an FCPA practitioner. Darden also provides a list of things he would change about the FCPA or FCPA enforcement and comments on recent FCPA enforcement actions concerning internship and hiring practices.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.

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