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Friday Roundup

Another “foreign official” challenge is denied, the DOJ’s FCPA door continues to revolve, and one DOJ official is probably glad he is off the hot seat … it’s all here in the Friday roundup.

O’Shea “Foreign Official” Challenge Denied

The remaining “foreign official” challenge of 2011 (brought by John Joseph O’Shea in his case pending in the Southern District of Texas) has been denied.  (See here [1] for the previous post including links to the briefing on the issue).  Without issuing a written decision, Judge Lynn Hughes (S.D. Tex.) denied O’Shea’s motion to dismiss the indictment based on O’Shea’s argument that employees of Comision Federal de Electricidad (“CFE”), a Mexican utility and the same entity that was at issue in the Lindsey Manufacturing “foreign official” challenge, are not “foreign officials” under the FCPA.

O’Shea’s “foreign official” challenge was the fifth such challenge in FCPA history and the second (Nguyen / Nexus Technologies being the other) to end without a written decision.  The other three challenges Haiti Teleco related case (here [2]), Lindsey Manufacturing (here [3]) and Carson et al.  (here [4]) resulted in written decisions.

Revolving Door

Hank Walther, the former Assistant Chief of the DOJ’s FCPA Unit (and most recently the former Deputy Chief of the DOJ’s Health Care Fraud Unit) recently joined the law firm Jones Day as a partner.  Walther joins a long-list of former DOJ FCPA enforcement attorneys who will now be providing FCPA defense and compliance services in the private sector.  In a release (here [5]) Greg Shumaker (Partner-In-Charge of Jones Day’s Washington office) said as follows.  “Hank Walther brings a wealth of experience and insight from his years in government.  The unique perspective he has gained from prosecuting hundreds of health care fraud and FCPA cases on behalf of the federal government will add tremendously to our Corporate Criminal Investigations Practice. We’re delighted he’s chosen Jones Day for his return to the private sector.”

I agree that Walther likely has unique insight and perspectives from his years of enforcing the FCPA.  I also believe that DOJ enforcement attorneys who aggressively enforce a niche law have the potential ability to increase private-sector demand for their post-government services.  That is why I continue to believe it is in the public interest (recognizing the niched nature of both the DOJ and SEC FCPA units) that all FCPA enforcement attorneys should be prohibited when leaving the government from providing FCPA defense or compliance services for a five-year time period. For additional reading see this [6] piece I co-authored.

Off The Hot Seat

Lisa Brennan (Main Justice) reports (here [7]) that Greg Andres (a former Deputy Assistant Attorney General in the Fraud Section) is returning to the U.S. Attorneys Office – Eastern District of New York.  In certain respects, during the past year, Andres was the DOJ’s voice on FCPA enforcement and reform issues.  Andres testified on behalf of the DOJ at the November 2010 Senate FCPA hearing (see here [8] and here [9] for more) as well as the June 2011 House Hearing (see here [10] for more).

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A good weekend to all.