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New Congress, Same Bills, Same Response

Capital Hill

Previous posts here and here discussed House and Senate versions of the “Countering Russian and Other Overseas Kleptocracy Act” (“CROOK Act”). This previous post discussed the Gabriella Miller Kids First Research Act 2.0 (a bill that seeks to transfer pharma FCPA civil settlement amounts to a fund focused on pediatric disease research).

With a new Congress in session, both bills were re-introduced, yet my response is the same: neither bill will do much of anything to reduce bribery or corruption.

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It’s Time Again To Take A Deep Breath

take a deep breath

These pages have covered Donald Trump and the Foreign Corrupt Practices Act since 2012 (see here) and long before he was President (see here and here).

Days after Trump was elected President in November 2016, this post was titled “Let’s All Take a Deep Breath When It Comes To FCPA Enforcement In The Trump Administration.” When there was not a corporate FCPA enforcement action during the (better sit down for this one – first four months of the Trump Administration) this post was titled “Let’s All Take A Deep Breath, Gaps In FCPA Enforcement Are Common.”

As highlighted below, it is time again for everyone to take a deep breath when it comes to the FCPA and Trump.

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


Prior posts here, here and here highlighted a bill recently introduced in the House of Representatives titled the Foreign Extortion Prevention Act which seeks 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.

As noted in the prior posts, The Foreign Extortion Prevention Act seeks to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute). As further highlighted in the prior posts, if enacted, The Foreign Extortion Prevention Act will lead to several areas of incongruous between “bribe” payor liability (what the FCPA captures) and “bribe” demander liability (what the Foreign Extortion Prevention Act seeks to capture).

Recently, I was contacted by the legislative assistant of a member of Congress who sought my views on the above topics. In preparing for the conference call, I drafted this document which highlights statutory language to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery.

The below post describes the statutory amendments and provides other general observations.

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


Including the first time I proposed this concept in 2010, this is the 10th time I have written this general post (see herehereherehereherehereherehere and here for the previous versions) and 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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