At FCPA Sentencing, Judge Goes Off On Various Aspects Of FCPA Enforcement
While Foreign Corrupt Practices Act enforcement is largely devoid of judicial scrutiny, sentencing of individual defendants remains a judicial function and provides a rare (and often overlooked) public glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.
Sentencing transcripts not only capture advocacy moments seldom publicly seen in FCPA enforcement, but also telling unscripted comments concerning FCPA enforcement. For instance, while the enforcement agencies and others often portray bribery as a black and white issue, judges sentencing FCPA individual defendants often see shades of gray.
Several examples are highlighted in the book “The FCPA in a New Era” and another noteworthy example concerns recent remarks made by Nicholas Garaufis (Senior District Judge, E.D.N.Y. – nominated to the bench by President Clinton) in sentencing Samuel Mebiame, a Gabonese national connected to Och-Ziff who pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions in connection with African mining projects.
Friday Roundup
Comings and goings, more judicial scrutiny not less is needed, and once again not the media’s finest moment. It’s all here in the Friday roundup.
Comings and Goings
In the past few months, DOJ Deputy Assistant Attorney General Trevor McFadden has seemed to be the primary DOJ spokesperson when it comes to the Foreign Corrupt Practices Act (see prior posts here, here and here detailing McFadden’s speeches).
This may soon come to an end as President Trump recently nominated McFadden to the federal bench.
Where Are Former DOJ/SEC FCPA Unit Chiefs Now?
Imagine a foreign country where enforcement of a specific law is vested solely, per enforcement agency policy, in the hands of a few individuals and where these few individuals are in charge of all investigations, prosecutions, and resolutions under the law; where the individuals set and champion policy objectives relevant to the specific law; where the individuals “enforce” the specific law against business organizations largely behind closed doors in the absence of meaningful judicial scrutiny and little case law setting the parameters of the specific law; and where the individuals then leave government service for lucrative jobs in the private sector to provide defense and compliance services to business organizations subject to the enforcement climate they helped create.
Do you have concerns with such a system?
FCPA Flash Podcast – A Conversation With Richard Grime (Former Assistant Director of SEC Enforcement) Regarding FCPA Enforcement
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 Richard Grime (Gibson, Dunn & Crutcher and former Assistant Director of SEC Enforcement) and is a must listen if you want to hear informed and candid commentary about the current FCPA enforcement landscape from someone who used to enforce the FCPA.
During the podcast, Grime discusses: (i) reasons for the general increase in FCPA enforcement (among the reasons he mentions is “the government has realized this is a money-winner”; (ii) whether FCPA enforcement, including the internal control’s provisions, has been pushed beyond the breaking point (in Grime’s words yes it has and “almost any conduct becomes subject to an enforcement vehicle”); and (iii) whether long, drawn-out FCPA investigations can be avoided.
Former SEC FCPA Unit Chief Brockmeyer To FCPA Inc.
Following in the footsteps of numerous other FCPA enforcement attorneys at the DOJ and SEC who leave government service for lucrative positions in FCPA Inc., Debevoise & Plimpton announced today that Kara Brockmeyer (who last month announced she was leaving her SEC position as FCPA Unit Chief) “is joining the firm’s Washington, D.C. office as a partner and member of the White Collar & Regulatory Defense and Strategic Crisis Response and Solutions Groups.”
See this recent post for additional data points relevant to Brockmeyer’s tenure as FCPA Unit Chief.