Neither Admit Nor Deny Headed to Second Circuit
It is not an FCPA enforcement action, but Judge Rakoff’s recent rejection of the SEC’s neither admit nor deny settlement policy in the Citigroup case (see here) is certainly relevant to the SEC’s enforcement of the FCPA. Yesterday, the SEC filed a notice of appeal in the Second Circuit. This will certainly be an issue to watch in the New Year as the SEC’s resolution policy (”hallowed by history, but not by reason” in the words of Judge Rakoff) goes before the Second Circuit. See here for Robert Khuzami’s (Director of the SEC Division of Enforcement) statement on the appeal and here for a recent speech delivered by Khuzami in which he talks, in part, on the SEC’s resolution policy. In yesterday’s statement, Khuzami said that the “new standard adopted by [Judge Rakoff] could in practical terms press the SEC to trial in many more instances ….”. Jesse Eisinger (ProPublica) asks here does the SEC have trialphobia?
SEC Launches FCPA Site
The SEC recently launched, apparently with little fanfare, a specific FCPA site – see here. The site contains a list (and in some cases a summary) of SEC FCPA enforcement actions from 1978 to the present, including (for most actions) links to original source documents. Kudos to the SEC for this FCPA specific site. The DOJ’s FCPA specific site is here. Both of these resources, along with others including two new resources mentioned below, can be found on the “Resource Center” pageof this site.
Big, Bold, and Bizarre
One thing academic publishing is not is fast. Those cite-checking parties and author revisions take time. In any event, before the calendar flips to 2012, I am pleased to share my recent article “Big, Bold, and Bizarre: The Foreign Corrupt Practice Act Enters A New Era” published by the University of Toledo Law Review. The article can be downloaded here and it is, for the most part, a review and analysis of 2010 FCPA enforcement actions and related developments (current as of January 15, 2011). For collectors of FCPA Year in Review pieces, my review and analysis of 2009 FCPA enforcement actions and related developments published by the Indiana Law Review can be downloaded here.
In this first-of-its-kind FCPA/Travel Act “decision tree,” Perkins Coie Partner and former federal prosecutor T. Markus Funk provides in-house counsel and others in the anti-bribery space with a handy, practical analytical tool for walking through the standard range of foreign (and domestic) bribery issues that may come up. Markus, an FCPA practitioner and who serves as the National Co-Chair of the ABA’s Global Anti-Corruption Task Force, included not only the steps to FCPA liability, but he also integrated the Travel Act’s prohibitions into the comprehensive analysis. This is a very useful one-stop chart for anyone involved in FCPA issues or likely to encounter foreign bribery issues.
Richard Cassin of FCPA Blog fame, along with his partners at Ethics360, recently launched the FCPA Database – see here. On his FCPA Blog (here) Cassin notes that the FCPA Database is “a unique suite of products designed to aid today’s compliance professionals.” The FCPA Database includes a searchable collection of current anti-corruption legislation from over 130 countries, information regarding anti-money-laundering laws, privacy laws, enforcement agencies, and a directory of more than 2,000 law firms, and about 1,000 law firm memos on anti-corruption enforcement and compliance. I’ve spent some time in the database and feel like the holidays have come a bit early as it is a useful research and learning tool.
This previous post discussed the Second Circuit’s opinion this week in the Bourke matter. The post ended by noting that Bourke still had a motion for a new trial pending, but that it was unlikely Judge Scheindin (S.D.N.Y.) would grant that motion. The FCPA Blog reports here that Judge Scheindin denied the motion for a new trial.