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Scrutiny Alerts And Updates

May 7, 2021

Ormat Technologies

As highlighted here, earlier this year a “short seller” alleged that Ormat Technologies (a Nevada-based geothermal power company with shares traded on the New York Stock Exchange that owns and operates power plants in Kenya, Guadalupe, Guatemala, Honduras and the United States) was “engaged in what we believe to be widespread and systematic acts of international corruption.”

In its most recent quarterly filing, Ormat stated:

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There Is No FCPA News Today

May 6, 2021

Really, there isn’t!

There is nothing in the FCPA space today particularly newsworthy warranting your attention. Sure, I could have drawn compliance lessons from the sun rising this morning or discussed the lessons learned from being a head Varsity boys basketball coach for two years now and related that to compliance (there are clear parallels), or even the lessons I’ve learned over the past two weeks raising six baby chickens and some how relating it to the Tyson Foods FCPA enforcement action.

But who really cares!

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The U.K. Deferred Prosecution Agreement Regime: Aligning Rhetoric And Reality

May 5, 2021

A guest post from David Corker (a Partner at Corker Binning Corker in London).

The cornerstone of the Deferred Prosecution Agreement (‘DPA’) regime in our jurisdiction is the centrality of the court. At the start of both his preliminary and final judgments delivered in the first DPA in 2015, Leveson P intended that his affirmation of this principle would become, as indeed it has, axiomatic. Almost every subsequent judgment endorsing a DPA has recited his words about the indispensable judicial role. Opening her 32-page judgment concerning the Airbus DPA in 2020[1], for example, Sharp P (Sir Brian’s successor as head of the Queen’s Bench Division) reproduced (paras 7 and 8) the relevant passages in full.

For this article this extract provides sufficient colour:

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DOJ’s FCPA Unit Chief Joins FCPA Inc.

May 4, 2021

As sure as the sun rises in the east and dogs bark – and following a well traveled career path – DOJ FCPA Unit Chief Christopher Cestaro is joining a law firm (WilmerHale) for an FCPA practice. (See here).

According to the WilmerHale release:

“As head of the FCPA Unit, Mr. Cestaro oversaw all the Justice Department’s FCPA investigations, prosecutions and resolutions in the US. He supervised many of the government’s most challenging and high-profile cross-border investigations, involving every significant industry sector, and he oversaw investigations of individuals at the highest levels of companies and government, including corporate board members, executives and senior foreign government officials. He led the unit at a time when enforcement authorities in other nations increasingly launched corruption probes and enforcement actions, requiring careful international coordination and diplomacy—a shift from the past, when such actions were mainly the province of US authorities acting alone. As a result, more companies now confront complex cross-border FCPA investigations and negotiations.”

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FCPA Flash Podcast – A Conversation With Douglas Zolkind Regarding DOJ FCPA Issues

May 3, 2021

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 podcast episode is a conversation with Douglas Zolkind. Zolkind recently joined the New York office of Debevoise & Plimpton after serving as an Assistant U.S. Attorney for the Southern District of New York. Among the cases he prosecuted were FCPA trial convictions involving Ng Lap Seng and Patrick Ho. During the podcast, Zolkind: (i) shares his experiences trying FCPA cases including the difference between “FCPA violations” and “FCPA violations that can be proven at trial”; (ii) discusses underappreciated aspects of DOJ FCPA enforcement; (iii) opines whether the government is vulnerable on some of its FCPA enforcement theories; and (iv) suggests a change to FCPA enforcement.

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