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The “Foreign Extortion Prevention Act” Is Still Flawed

Capital Hill

Earlier this month, the Counter-Kleptocracy Act was introduced in the House of Representatives by Representative Steve Cohen (D-TN) and Representative Joe Wilson (R-SC).

As explained in this release, “the legislation consolidates seven bipartisan counter-kleptocracy bills led by members of the Helsinki Commission and the Caucus against Foreign Corruption and Kleptocracy during the 117th Congress.”

As further explained in the release, The Counter-Kleptocracy Act includes the following counter-kleptocracy bills:

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Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By Pactiv Evergreen

proposal

Including the first time I proposed this concept in 2010, this is the 11th time I have written this general post (see hereherehereherehereherehereherehere and here for the previous versions). Until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the enforcement agency publicly state, in a thorough and transparent mannerthe facts the company disclosed and why the enforcement agency did not bring an enforcement action based on those facts.

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A Demand Side Prohibition Belongs In The FCPA And Here Is How To Accomplish It

extortion

Prior posts herehere and here in 2019 highlighted a bill introduced in the House of Representatives titled the Foreign Extortion Prevention Act which sought to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.

The bill sought to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute) and the prior post highlighted how this potential statutory placement was odd and could lead to several areas of incongruous between liability for the “bribe” payor (what the FCPA captures) and the “bribe” demander (what the Foreign Extortion Prevention Act sought to capture).

Recently, Representative Shelia Jackson Lee (D-TX), along with a bipartisan group of co-sponsors, reintroduced the bill (H.R. 4737). Once again, the bill seeks to capture the “demand side” of bribery through amending 18 USC 201 – and not the FCPA – and therefore presents the same issues as hinted at above.

Consistent with this post from 2019, I continue to believe that if Congress seeks to explicitly capture the “demand side” of bribery (the DOJ already uses the money laundering laws against alleged “bribe taking” foreign officials when there is jurisdiction), this goal is best accomplished through amending the FCPA and set forth here are FCPA amendments I previously drafted (and shared with certain legislative aides) to accomplish this task.

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Once Again, Rebooting A Long-Standing FCPA Proposal, This Time In The Aftermath Of A Recent Disclosure By Avianca Holdings

proposal

Including the first time I proposed this concept in 2010, this is the 1oth time I have written this general post (see herehereherehereherehereherehere and here for the previous versions). Until things change I will keep writing it which means I will probably keep writing this same general post long into the future.

The proposal is this: when a company voluntarily discloses an FCPA internal investigation to the DOJ and/or SEC and when one or both of the enforcement agencies do not bring an enforcement action, have the enforcement agency publicly state, in a thorough and transparent mannerthe facts the company disclosed and why the enforcement agency did not bring an enforcement action based on those facts.

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

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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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