FCPA Flash – The Official Podcast of FCPA Professor
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In this episode, Kara Brockmeyer (Chief of the SEC's FCPA Unit between 2011 - 2017) looks back at her time at the SEC including what she views as the most significant matters / trends; discusses a few items that, in her view, are not well-understood or appreciated about the SEC's FCPA enforcement program; explains theories of enforcement regarding the FCPA's internal controls provisions; and shares insights regarding the SEC's whistleblower program relevant to the FCPA.
In this episode, David Bitkower (former Principal Deputy Assistant Attorney General for the DOJ Criminal Division and current partner at Jenner & Block) discusses multilateral bribery settlements including whether it is ever appropriate for the U.S. to bring FCPA enforcement actions against foreign companies from OECD Convention countries. Bitkower also discusses whether the FCPA, as it approaches 40, has been successful in achieving its stated objectives.
In this episode, Neil Smith (former senior counsel in the SEC Enforcement Division and member of the SEC's FCPA Unit and current partner at K&L Gates) discusses: SEC remedies in FCPA enforcement actions, the SEC's theory of enforcement around the FCPA's internal controls provisions, the impact of the Supreme Court's recent Kokesh decision on SEC FCPA enforcement, and changes to the FCPA and FCPA enforcement that he would like to see.
In this episode, James Copland (senior fellow at the Manhattan Institute who has written extensively about NPAs and DPAs) discusses: why the increased use of NPAs and DPAs is concerning; whether the DOJ (and SEC) should abolish use of NPAs and DPAs; and whether business organizations (and their tendency to be excessively risk averse) are partly to blame for the current state of affairs.
In this episode, Milos Barutciski (Bennett Jones - Toronto) discusses Canada’s FCPA-like law, the Corruption of Foreign Public Officials’ Act. (CFPOA), including: some of the differences between the CFPOA and the FCPA; how enforcement of the CFPOA is different than enforcement of the FCPA; and whether Canadian companies subject to the FCPA are more concerned with CFPOA enforcement or FCPA enforcement.
In this episode, Shearman & Sterling attorneys Danforth Newcomb and Cynthia Urda Kassis discuss: (i) what makes potential legal liability under the FCPA or similar laws different than potential legal liability under other laws; (ii) the gap between corporate FCPA enforcement and individual FCPA enforcement; and (iii) whether a recent DOJ statement that “FCPA investigations [should] be measured in months, not years” is believable.
In this episode, Richard Grime (Gibson, Dunn & Crutcher and former Assistant Director of SEC Enforcement) discusses: (i) reasons for the general increase in FCPA enforcement (among the reasons mentioned is "the government has realized this is a money-winner"; (ii) whether FCPA enforcement, including the internal control's provisions, has been pushed beyond the breaking point (in Grime's words yes it has and "almost any conduct becomes subject to an enforcement vehicle"); and (iii) whether long, drawn-out FCPA investigations can be avoided. The episode is a must listen if you want to hear informed and candid commentary about the current FCPA enforcement landscape from someone who used to enforce the FCPA.
In this episode, Ryan McConnell (founder of the boutique Houston law firm R. McConnell Group and author of the article "Watching Which Way the Wind Blows: You Need Good Forecasting to Build Good Compliance"), discusses: (i) how many company risk assessments are fundamental flawed; (ii) how best to forecast FCPA risk; (iii) and whether the DOJ and SEC's approach to enforcing the FCPA is fair to certain companies.
In this episode, Judy Krieg (a U.S. educated lawyer in the U.K. offices of Shepherd and Wedderburn) talks about her recent post titled "UK DPAs - Have We Really Built a Better Mousetrap?" and discusses the U.K.'s emerging DPA regime; answers the above question; explains why certain recent UK DPAs "have had their accuracy and factual underpinnings questioned;" and opines whether DPAs in the U.K. going forward will be the rule rather than the exception.
In this episode, 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 to support an FCPA compliance defense.
In this episode, Jay Darden (Paul Hastings and former Assistant Chief of the DOJ's Fraud Section) 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.
In this episode Sherbir Panag (managing partner of the New Delhi office of Panag & Babu) addresses the question of whether doing business in India is possible without paying bribes; talks about the “bribery panic” that often results in India; discusses how companies can best navigate India’s “Licence Raj”; and provides advice for how companies can “Indianise” FCPA compliance programs.
In this episode Marc Bohn (Miller & Chevalier) previews Kokesh v. SEC, a case recently accepted by the Supreme Court which presents the issue of whether a five-year statute of limitations applies to SEC claims for disgorgement. Although not an FCPA matter, disgorgement is the predominate remedy the SEC seeks in corporate FCPA actions and Bohn discusses the potential impact of the Kokesh decision on FCPA compliance, internal investigation, and enforcement issues.
In this episode Karen Popp (Sidley Austin - an FCPA practitioner with prior DOJ experience) provides her list of the top 2016 developments including: international collaboration, a DOJ initiatives "scorecard," and reflections on the Leslie Caldwell / Andrew Weissmann era at the DOJ; and the continued prominence of compliance and the potential for even greater expectations in the Trump administration.
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