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The Many Contradictions In The DOJ’s FCPA Statutory Interpretation Positions

June 27, 2017

Given the paucity of contested DOJ Foreign Corrupt Practices Act enforcement actions, it is rare for the DOJ to publicly articulate its FCPA statutory interpretation positions.

But when this does occur, the DOJ frequently takes contradictory and inconsistent positions.

Counsel representing defendants in contested FCPA enforcement actions would be wise to analyze this dynamic and this dynamic represents yet another reason why more business organizations and individuals under FCPA scrutiny should put the DOJ to its burden of proof.

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On The Eve Of Trial, Battle Over The FCPA’s “Local Law” Affirmative Defense In U.S. V. Ng Lap Seng

June 26, 2017

This previous post highlighted U.S. v. Ng Lap Seng (pictured), a criminal enforcement action involving alleged bribery of United Nations officials that includes FCPA charges. Trial was to begin in late May but was adjourned at the last minute and trial is set to begin today.

As highlighted in this post, on the eve of trial the parties are battling over jury instructions regarding the Foreign Corrupt Practices Act’s “local law” affirmative defense.

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Friday Roundup

June 23, 2017

Guilty plea, scrutiny alerts, absurd and remarkable, and Caldwell to private practice. It’s all here in the Friday roundup.

Guilty Plea

As highlighted in this January post, the DOJ announced Foreign Corrupt Practices Act, and related charges, against four individuals for their roles in a scheme to pay $2.5 million in bribes to facilitate the $800 million sale of a commercial building in Vietnam to a Middle Eastern sovereign wealth fund.

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Development From The “Other Universe” – In Dismissing FCPA-Related Civil Claims, Judge Rejects The Notion That The FCPA “Establishes A Statutory Floor For Adequate Internal Controls”

June 22, 2017

Foreign Corrupt Practices Act issues often co-exist in two parallel universes.

One universe is ruled by perceived all-powerful gods with big and sharp sticks in which subjects dare challenge the gods. Another universe consists of checks and balances in which independent actors call the balls and strikes.

The first universe refers to FCPA enforcement by the DOJ and SEC. The second universe refers to litigation of FCPA-related claims in which judges make decisions in the context of an adversarial legal system. This second universe is often referred to as the rule of law universe.

There are several examples of theories used in the first universe that do not work in the second universe.

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The Political Contributions Of Various FCPA Commentators

June 21, 2017

FCPA commentators often write about the importance of transparency.

The question arises, when FCPA commentators write about topics political in nature including statements about specific political actors, should the commentator disclose their political contributions so that readers can better assess the credibility and objectivity of what the commentator is saying?

This post highlights the publicly available political contributions of various FCPA commentators.

For the record, I’ve never made a political contribution in my life.

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