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Archive | Non-Prosecution Agreement

Attorney General Nominee Jeff Sessions – “I was taught if they violated a law, you charge them. If they didn’t violate the law, you don’t charge them.”

sessions

Non-prosecution agreements and deferred prosecution agreements have distorted many areas of law, perhaps none more than the Foreign Corrupt Practices Act.

As highlighted in the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement,” since introduced to the FCPA context in 2004, alternative resolution vehicles have become the dominant way the DOJ resolves corporate FCPA scrutiny and serve as an obvious reason for the general increase in FCPA enforcement over the past decade. To the many cheerleaders of increased FCPA enforcement, NPAs and DPAs are thus worthy of applause.

Yet in a legal system based on the rule of law, quality of enforcement is more important than quantity of enforcement. Through empirical data and various case studies, the above article measures the impact NPAs and DPAs have on the quality of FCPA enforcement and concludes that NPAs and DPAs — while resulting in higher quantity of FCPA enforcement — result in lower quality of FCPA enforcement.

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In Depth Into The JP Morgan FCPA Enforcement Action

JPMorgan

Yesterday, the DOJ and SEC announced (here and here) a $202.6 million FCPA enforcement action against J.P. Morgan (and a related entity) based on its alleged improper hiring and internship practices that the U.S. government has labeled bribery and corruption.

While the enforcement action was expected to focus on alleged improper hiring and internship practices involving so-called Chinese “princelings” (family members of alleged Chinese foreign officials), a meaningful component of the DOJ’s enforcement action involves hiring and internship practices involving family members of private individuals. Specifically, the DOJ’s non-prosecution agreement highlights 5 examples of “Quid Pro Quo Hiring” and 2 examples (40%) concern private companies: “a private Chinese manufacturing company” and a “Taiwanese private financial holding company.”

Numerous ironies, contradictions, and rule of law concerns abound in the enforcement action that will be explored in more detail in future posts. (In this clip, I talk to National Public Radio about one).

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FCPA Flash – A Conversation With Joseph Warin

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 the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Joseph Warin (Gibson Dunn & Crutcher). Warin is the lead author of an article that recently caught my eye titled “Refusing to Settle: Why Public Companies Go to Trial in Federal Criminal Cases.” The article is not specific to the Foreign Corrupt Practices Act, but several of the factors identified in the article about why companies refuse to settle are certainly relevant to FCPA enforcement.

In the podcast, Warin discusses: (i) why so few companies under FCPA scrutiny refuse to settle; (ii) the de facto compliance defense that companies have successfully invoked in other federal criminal trials; (iii) why the terms of NPAs or DPAs may be worse for companies compared to going to trial; and (iv) whether the current FCPA enforcement environment would look the same if more business organization opted to put the DOJ or SEC to its burden of proof.

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Friday Roundup

Roundup

Scrutiny alerts and updates, sentenced, asset recovery, to FCPA Inc., across the pond, quotable and for the reading stack.

It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

Grupo Televisa

This Wall Street Journal article concerns Grupo Televisa SAB, a Mexican broadcaster with shares traded on the NYSE. According to the article:

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Friday Roundup

Roundup

Positive feedback, guilty plea, scrutiny alerts and updates, an instrumentality with mouse ears?, rant alert, quotable, and for the reading stack. It’s all here in the Friday roundup.

Positive Feedback

In running FCPA Professor for nearly seven years, I often feel like the captain of a ship in a wide, vast ocean. My metrics tell me people are reading, but feedback tends to be sparse. I take this as a good sign given that negative feedback is more likely to occur than positive feedback.

Thus, I appreciated much positive feedback in connection with the recent post “Denied by the DOJ.”

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