Top Menu

A Demand Side Prohibition Belongs In The FCPA And Here Is How To Accomplish It

extortion

Prior posts here, here and here highlighted a bill recently introduced in the House of Representatives titled the Foreign Extortion Prevention Act which seeks to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.

As noted in the prior posts, The Foreign Extortion Prevention Act seeks to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute). As further highlighted in the prior posts, if enacted, The Foreign Extortion Prevention Act will lead to several areas of incongruous between “bribe” payor liability (what the FCPA captures) and “bribe” demander liability (what the Foreign Extortion Prevention Act seeks to capture).

Recently, I was contacted by the legislative assistant of a member of Congress who sought my views on the above topics. In preparing for the conference call, I drafted this document which highlights statutory language to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery.

The below post describes the statutory amendments and provides other general observations.

Continue Reading

Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By Ciena

proposal

Including the first time I proposed this concept in 2010, this is the 10th time I have written this general post (see herehereherehereherehereherehere and here for the previous versions) and until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the enforcement agency publicly state, in a thorough and transparent mannerthe facts the company disclosed and why the enforcement agency did not bring an enforcement action based on those facts.

Continue Reading

CROOK Act Seeks To Fund An Anti-Corruption Action Fund With 5% Of “Each Civil And Criminal Fine And Penalty Imposed Pursuant To Actions Brought” Under The FCPA

Capital Hill

Recently, Representative Bill Keating (D-Mass.) and Representative Brian Fitzpatrick (R-Pa.) introduced a bill titled “Countering Russian and Other Overseas Kleptocracy Act” (“CROOK Act”).

As explained below, the Act seeks “an amount equal to five percent of each civil and criminal fine and penalty imposed pursuant to actions brought under the FCPA … that would otherwise be deposited in the Treasury of the United States” to fund the Anti-Corruption Action Fund.”

As further explained below, the Act demonstrates a poor understanding of FCPA enforcement actions.

Continue Reading

Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By Misonix

proposal

Including the first time I proposed this concept in 2010, this is the 9th time I have written this general post (see hereherehereherehereherehere and here for the previous versions) and until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the enforcement agency publicly state, in a thorough and transparent mannerthe facts the company disclosed and why the enforcement agency did not bring an enforcement action based on those facts.

Continue Reading

Senator Amy Klobuchar On The FCPA

My Approved Portraits

Over the weekend, Senator Amy Klobuchar (D-MN) entered the crowded field of Democrats hoping to secure the party’s nomination for President.

This post highlights how Senator Klobuchar was a leading voice for FCPA reform in connection with the Senate’s 2010 FCPA hearing and aftermath. (See here for a transcript of the hearing and here for the video).

Continue Reading

Powered by WordPress. Designed by WooThemes