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Friday Roundup

Roundup

Overhead at the town hall meeting, sentenced, investigative fees, “fake” FCPA news, fairly obvious, hook-line-and-sinker, fore, pardon me for being a stickler, ISO37001 related, and purely speculative and not credible.

It’s all here in the Friday roundup

Overhead at the Town Hall Meeting

I can’t imagine that the FCPA is a frequent topic of discussion at New England town hall meetings. But as highlighted here it was recently a topic of discussion as “the new operator of a popular ski resort in New Hampshire [Och-Ziff]  faced off against concerned residents, some of whom fear the company’s past legal troubles raise doubts about whether it was the right choice to oversee the facility.”

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Motions To Dismiss Fully Briefed In SEC v. Cohen & Baros

Judicial Decision

As highlighted in this prior post, in January 2017 the SEC filed a civil complaint against former Och-Ziff executives Michael Cohen and Vanja Baros alleging the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

The prior post noted that the defendants would be mounting a defense and further noted that the SEC is rarely put to its burden of proof in FCPA enforcement actions (corporate or individual). Indeed, the SEC has never prevailed in FCPA history when put to its ultimate burden of proof.

Late last week, the briefing on the motions to dismiss appeared (all at once) on the court’s docket and this post summarizes the disputed issues which largely center on statute of limitations issues and (as relevant to Baros, a foreign national defendant) general jurisdiction issues as well as FCPA specific jurisdiction issues).

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At FCPA Sentencing, Judge Goes Off On Various Aspects Of FCPA Enforcement

Judge Garaufis

While Foreign Corrupt Practices Act enforcement is largely devoid of judicial scrutiny, sentencing of individual defendants remains a judicial function and provides a rare (and often overlooked) public glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.

Sentencing transcripts not only capture advocacy moments seldom publicly seen in FCPA enforcement, but also telling unscripted comments concerning FCPA enforcement.  For instance, while the enforcement agencies and others often portray bribery as a black and white issue, judges sentencing FCPA individual defendants often see shades of gray.

Several examples are highlighted in the book “The FCPA in a New Era” and another noteworthy example concerns recent remarks made by Nicholas Garaufis (Senior District Judge, E.D.N.Y. – nominated to the bench by President Clinton) in sentencing Samuel Mebiame, a Gabonese national connected to Och-Ziff who pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions in connection with African mining projects.

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Former Och-Ziff Executives To Mount A Defense Against SEC’s FCPA (And Related) Claims

cohen

I am not suggesting that the following is a very meaningful statistic, but it is a fact: there has been more FCPA enforcement in the first week of the Trump administration than the first week of the Obama administration.

But then again “assigning” to the Trump administration yesterday’s SEC enforcement action against Michael Cohen (pictured) and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff is foolish just as it is foolish to “assign” FCPA enforcement in the first months (indeed the first year) of the Obama administration to the Obama Administration.

Yesterday’s enforcement action is not surprising as it was fairly obvious (as detailed in this prior post) that the main actors in the Och-Ziff matter were Cohen and Baros (even though not specifically named in the September 2016 resolution documents).

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SEC Director Of Enforcement Ceresney On …

Ceresney

Yesterday’s post highlighted comments made by Deputy Attorney General Sally Yates at a recent Foreign Corrupt Practices Act event and this post provides equal time to comments made by SEC Director of Enforcement Andrew Ceresney at the same event.

Similar to the DOJ speech, much of Ceresney’s speech represents the same old, same old something even he acknowledged during his speech.

When reading Ceresney’s comments about the importance of individual FCPA prosecutions keep in mind the following facts. In 2016 there have been 21 SEC corporate FCPA enforcement actions and 15 actions (72%) have not resulted (at least yet) in any related FCPA charges against company employees. This figure is generally consistent with the overall figure since 2008 in which approximately 80% of SEC corporate FCPA enforcement actions have not resulted in any related FCPA charges against company employees.

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