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Incoming DOJ Deputy Assistant Attorney General Trevor McFadden Was Spot-On Regarding FCPA Enforcement

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Some think – or at least I’ve been told – that certain of my Foreign Corrupt Practices Act views are controversial or out of the “main stream” (whatever the “main stream” actually is or means).

Yet, I am confident that much of what I write and talk about represents majority views, I just have a greater ability to write and speak my mind compared to others in the FCPA space.

Indeed, as I’ve commented before (here, here and here), one of the interesting things about writing about the FCPA and related issues on a daily basis is that often I just need to wait for a former FCPA enforcement official to say the same thing or for an incoming FCPA enforcement official to previously articulate the same thing.

According to reports, former Baker McKenzie partner Trevor McFadden has been appointed as DOJ Deputy Assistant Attorney General in the Trump administration where he will oversee the DOJ’s fraud section.

In this article titled “Why DOJ Struggles to Convict Individuals in FCPA Cases,” McFadden and his co-author (Brian Whisler) are spot-on when they write:

“[T]he FCPA practice has primarily evolved through a series of corporate settlement agreements, over which courts have little to no supervision and in which the burden of proof for evidentiary purposes has less impact. The relative absence of case law in the field has meant that the Justice Department has been able to advance expansive views regarding the scope and applicability of the FCPA, largely unhindered by skeptical juries and contrary case law.”

The McFadden co-authored article continues:

“However, these settlements carry little to no precedential value, and if individual prosecutions multiply as the Justice Department has promised, then prosecutors will increasingly be held to the high burden of proof and forced to defend their theories before judges.

[…]

In the United States, laws were never meant to be interpreted solely by the executive branch. Allowing courts to opine on the metes and bounds of the FCPA, after hearing arguments from opposing counsel and with the potential for appellate review thereafter, is in everyone’s interests. Corporations and their employees, FCPA practitioners, and prosecutors deserve more clarity than the Justice Department alone can provide, and contested trials will allow this to occur.”

Mr. McFadden can have a role in changing the problematic dynamics he previously mentioned.

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