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The Supreme Court’s Recent Unanimous Decision In A Restitution Case Provides Yet Another Reason Not To Voluntarily Disclose

supremecourt

The scenario is relatively common. Whether in the Foreign Corrupt Practices Act context or otherwise, an individual acts contrary to the law and when his or her conduct is discovered various business organizations impacted by the illegal activity conduct an internal investigation.

The question arises: if the individual engaged in the illegal activity is convicted, may the impacted business organizations recover from the individual internal investigation expenses under the Mandatory Victims Restitution Act (MVRA) and, if so, under what circumstances? In recent years, circuit courts have split on the relevant issues.

Last week though the Supreme Court provided clarity in Lagos v. U.S. In the unanimous decision authored by Justice Breyer, the court concluded that the words “investigation” and “proceedings” in the MVRA are limited to government investigations and criminal proceedings. After excerpting the case, this post highlights how business organizations can best position themselves for MVRA restitution in certain FCPA matters by not voluntarily disclosing.

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Business Organizations Should Not Take The DOJ’s Latest Voluntary Disclosure Bait

takebait

The DOJ’s efforts to entice business organizations to voluntarily disclose (in the Foreign Corrupt Practices Act context and otherwise) stretches back approximately 15 years (see this prior post collecting various DOJ speeches going back to 2004).

Fast forward to 2012, then it was the FCPA Guidance which sought to entice business organizations to voluntarily disclose by, among other things, highlighting six “anonymized examples of matters DOJ and SEC have declined to pursue” where a common thread was voluntary disclosure.

In April 2016, it was the DOJ’s pilot program, an effort – in the words of the DOJ –  to “encourage voluntary corporate self-disclosure.”

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Issues To Consider From The Panasonic Enforcement Action

Issues

This prior post went in-depth into the $280 million Foreign Corrupt Practices Act enforcement action against Japan-based Panasonic Corp.  and a U.S. subsidiary Panasonic Avionics Corp. (PAC).

This post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted in this prior post, Panasonic’s FCPA scrutiny appears to have begun in early 2013. Thus from start to finish, the company’s FCPA scrutiny lasted approximately 5.5 years.

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The Many Issues To Consider From The Dun & Bradstreet Enforcement Action

Issues

Some people simply read FCPA enforcement actions, accept the enforcement theories advanced, record the enforcement statistics, and go about their day.

Not here at FCPA Professor. Just because the FCPA is a fundamentally sound statute, does not mean that FCPA enforcement is necessarily fundamentally sound.

Prior posts here and here went in-depth into the SEC’s $9.2 million Foreign Corrupt Practices Act enforcement action against Dun & Bradstreet based on the conduct of two indirect Chinese subsidiaries from 6 – 12 years ago.

This post continues the analysis by highlighting the many troubling or notable issues to consider from the enforcement action.

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Friday Roundup

Roundup

Elevate, further to the clustering phenomenon, transparency, dismissed, and incomplete. It’s all here in the Friday roundup.

Elevate

Learning a new topic or elevating your knowledge and practical skills in a topic is not just for formal students in formal educational settings. Professionals in the workplace can also benefit from back to “school” experiences.

For professionals in the FCPA space – or wishing to join the FCPA space – the FCPA Institute serves this objective and has “graduated” approximately 200 hundred diverse professionals since its launch in 2014.

The next FCPA Institute will take place in Nashville on May 3-4th. See here to learn more and to register.

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