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OECD Revises Its “Recommendations” And Green Lights The Facade Of Enforcement

November 30, 2021

Recently, the OECD released a laundry list of updated recommendations for “further combating bribery of foreign public officials in international business transactions.”

As further proof that the OECD prioritizes quantity of enforcement over quality of enforcement (see here), the OECD is now recommending that member countries to the OECD Anti-Bribery Convention “consider using a variety of forms of resolutions when resolving criminal, administrative, and civil cases with both legal and natural persons, including non-trial resolutions.”

By doing so, the OECD is green lighting the “facade” of enforcement (see here and here for prior articles on the subject).

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FCPA Ambiguity

November 29, 2021

There are some FCPA commentators (see here and here for prior examples) who insist that it is “flawed” to suggest that the Foreign Corrupt Practices Act is vague or ambiguous and that “there’s no evidence in the record that judges or juries have any trouble understanding the FCPA.”

These suggestions are so incredibly uninformed as to be laughable.

Given how the DOJ and SEC have chosen to enforce the FCPA (that is largely through resolution vehicles not subjected to any meaningful judicial scrutiny), judicial scrutiny of FCPA enforcement theories is rare.

But when judicial scrutiny does occur in individual enforcement actions (every single substantive FCPA judicial decision has concerned individual defendants), a common thread is federal court judge finding portions of the FCPA vague and ambiguous and thus often resorting to the FCPA’s legislative history to give meaning to the law.

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This Week On FCPA Professor

November 27, 2021

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor.

This post highlights an FCPA enforcement action and guilty plea involving Frederick Cushmore Jr. (a former VP and Head of International Sales) at Corsa Coal Corp.

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Turkey

November 25, 2021

I hope this Thanksgiving finds you being thankful for many things in your life.

Among the many things I am thankful for are your readership and I hope FCPA Professor elevates your FCPA knowledge and skills.

May your turkey be golden brown.

The following FCPA enforcement actions have involved, in whole or in part, alleged improper conduct in Turkey.

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Does The SEC Even Need A Specific FCPA Unit?

November 24, 2021

When you run a daily website such as this for 12 years there is sometimes a cycle of coverage.

For instance, over the years November posts typically include the fact that the FCPA “tips” are a minor component of the SEC’s whistleblower program (despite predications to the contrary) as well as this post questioning – based on the SEC’s own data – whether the SEC even needs a specific FCPA unit.

In fiscal year 2010, the Securities and Exchange Commission created a specialized unit (one of only five in its enforcement division “dedicated to particular highly specialized and complex areas of securities law“) devoted to enforcing the FCPA.

The below post highlights how, based on the SEC’s own enforcement statistics, FCPA enforcement actions comprise a minuscule percentage of its overall enforcement actions as well as other quantitative and qualitative factors relevant to the question posed.

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