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Come For The FCPA, Stay For The Music: FCPA Institute – Nashville (May 4-5)

April 22, 2017

Could someone in your firm or organization benefit from a two-day, active learning experience devoted to the Foreign Corrupt Practices Act?

If so, please consider the FCPA Institute in Nashville on May 4-5.

Since 2014, the FCPA Institute has elevated the FCPA knowledge and practical skills of a diverse group of over 100 professionals through active learning.

The below video introduces you to the FCPA Institute; how the FCPA Institute is different than other FCPA conferences; the substantive knowledge and practical skills participants gain by attending the FCPA Institute; and what prior FCPA Institute “graduates” have said about their experience.

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Friday Roundup

April 21, 2017

Another McFadden speech and scrutiny alerts and updates. It’s all here in the Friday roundup.

Another McFadden Speech

Obviously Acting Principal Deputy Assistant Attorney General Trevor McFadden has many job duties, but it sure seems like giving FCPA speeches is at the top of this list. This prior post highlighted McFadden’s February 16th FCPA speech and this prior post highlighted McFadden’s April 18th FCPA speech.

Yesterday, McFadden delivered yet another FCPA speech at a conference run by a for profit company. As highlighted in numerous prior posts, it is truly a disgraceful practice when for-profit companies use high-ranking DOJ officials to drive attendance to their paid events and it is likewise disgraceful that DOJ officials allow themselves to be used in this way.

In any event, McFadden’s speech was basically the same as his speech earlier this week (although a meaningful component of yesterday’s speech was devoted to other topics such as violent crime).

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FCPA Gets Some Mentions During Oral Argument In Supreme Court Disgorgement Case

April 20, 2017

Because of how the DOJ and SEC have chosen to “enforce” the Foreign Corrupt Practices Act (that is largely through resolution vehicles that are not subject to any meaningful judicial scrutiny), the Supreme Court has never decided an FCPA case and, if this dynamic continues, likely will never decide an FCPA case.

Attempts were made in connection with the flawed 2014 U.S. v. Esquenazi “foreign official” decision (see here for my amicus brief urging the Supreme Court to accept the case including discussion of the above dynamic), but the Supreme Court ordinarily does not decide to hear a disputed legal issue after only one appellate court decision.

Given the above dynamics, the most FCPA observers can do is take note when the words “Foreign Corrupt Practices Act” are uttered in the Supreme Court and this occurred earlier this week during oral argument in SEC v. Kokesh, a non-FCPA case that is FCPA relevant because the issue before the Supreme Court is whether SEC disgorgement is subject to a five-year statute of limitations. (See prior posts here and here regarding the case and general issue as well as this FCPA Flash podcast in which Marc Bohn (Miller & Chevalier) discusses the case).

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DOJ’s McFadden Makes Sense When Talking About “Declinations” And States That FCPA Investigations Should Be “Measured In Months, Not Years”

April 19, 2017

Yesterday, Acting Principal Deputy Assistant Attorney General Trevor McFadden deliver this speech in Washington, D.C.

Sure, like a prior recent speech, McFadden did read from the “DOJ’s FCPA script,” but to his credit he did say some important things about FCPA compliance that is refreshing to hear from the DOJ. In addition, McFadden’s statement that his “intent is for our FCPA investigations to be measured in months, not years” should be welcome news to the business community. However, the DOJ has been saying the same thing for years and a wait and see approach is most prudent. For instance, in this 2005 speech then DOJ Assistant Attorney General for the Criminal Division Christopher Wray talked about “real-time enforcement” and stated: “in other words, punishing wrongdoers promptly after they commit their crimes. Simply put, speed matters in corporate fraud investigations . The days of five-year investigations, of agreement after agreement tolling the statute of limitations-while ill-gotten gains are frittered away and investor confidence sinks-are increasingly a thing of the past.”

Moreover, as highlighted in more detail below, McFadden made sense when talking about DOJ “declinations” and his reasons for why the DOJ may not bring a Foreign Corrupt Practices Act enforcement action in an instance of FCPA scrutiny undermines the “declination” definition used by certain FCPA Inc. participants.

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FCPA Flash – A Conversation With Judy Krieg Regarding The U.K.’s DPA Regime – Is It Really A Better Mousetrap?

April 18, 2017

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Judy Krieg (a U.S. educated lawyer in the U.K. offices of Shepherd and Wedderburn). Krieg recently authored a post titled “UK DPAs – Have We Really Built a Better Mousetrap?” that caught my eye and in the podcast Krieg: 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.

FCPA Flash is sponsored by Kroll. Kroll is trusted by companies and compliance officers worldwide to help prevent, detect, and remediate FCPA challenges with scalable, end-to-end compliance solutions: from high-volume third party screening and automated monitoring, to risk-based due diligence, to complex investigations and monitorships.