FCPA Flash – A Conversation With David Bitkower (Former Principal Deputy Assistant Attorney General)
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 episode is a conversation with David Bitkower. Earlier this year, Bitkower left the DOJ where he served as Principal Deputy Assistant Attorney General for the Criminal Division, the second-highest ranking position in the division. In the podcast, Bitkower (currently a partner at Jenner & Block) discusses his recent article “DOJ Must Beware of Unintended Consequences, As Multilateral Settlements Rise.” Other topics discussed include: whether it is ever appropriate for the U.S. to bring FCPA enforcement actions against foreign companies from OECD Convention countries (see here for the prior post), and whether the FCPA (as it approaches 40) has been successful in achieving its stated objectives.
Mulling Over Moser’s Recent FCPA Remarks
Recently Sandra Moser (Principal Deputy Chief, Fraud Section, DOJ) delivered these remarks (provided to me by the DOJ) at an event titled “Global Forum on Anti-Corruption in High Risk Markets.”
This post provides commentary on the remarks ranging from how best to incentivize compliance, the U.S. “piling” on foreign law enforcement actions, individual accountability, DOJ transparency in resolving FCPA enforcement actions, and the DOJ’s FCPA Pilot Program.
Acting Assistant AG Blanco On Foreign Law Enforcement Cooperation
Acting Assistant Attorney General Kenneth Blanco recently delivered this speech which focused largely on foreign law enforcement cooperation in bribery investigations. The bulk of the speech concerned U.S. – Brazil cooperation with portions also dedicated to the DOJ’s Kleptocracy Asset Recovery Initiative.
In his speech, Blanco used much of the same rhetoric as prior DOJ officials have in talking about bribery and corruption and once again the notion that the U.S. will “push[] forward hard against corruption, wherever it is” is subject to interpretation.
Another Week, Another DOJ Speech As McFadden Talks FCPA And Related Topics In Brazil
Yesterday, Acting Principal Deputy Assistant Attorney General Trevor McFadden delivered this speech in Brazil.
As highlighted in this post, McFadden talked about “some recent developments regarding the DOJ’s international cooperation efforts,” “some of the diverse tools in [the DOJ’s] prosecutorial toolbox that allow [it] to prosecute corruption” and “the importance of transparency in our anti-corruption prosecutions.”
DOJ’s McFadden Makes Sense When Talking About “Declinations” And States That FCPA Investigations Should Be “Measured In Months, Not Years”
Yesterday, Acting Principal Deputy Assistant Attorney General Trevor McFadden deliver this speech in Washington, D.C.
Sure, like a prior recent speech, McFadden did read from the “DOJ’s FCPA script,” but to his credit he did say some important things about FCPA compliance that is refreshing to hear from the DOJ. In addition, McFadden’s statement that his “intent is for our FCPA investigations to be measured in months, not years” should be welcome news to the business community. However, the DOJ has been saying the same thing for years and a wait and see approach is most prudent. For instance, in this 2005 speech then DOJ Assistant Attorney General for the Criminal Division Christopher Wray talked about “real-time enforcement” and stated: “in other words, punishing wrongdoers promptly after they commit their crimes. Simply put, speed matters in corporate fraud investigations . The days of five-year investigations, of agreement after agreement tolling the statute of limitations-while ill-gotten gains are frittered away and investor confidence sinks-are increasingly a thing of the past.”
Moreover, as highlighted in more detail below, McFadden made sense when talking about DOJ “declinations” and his reasons for why the DOJ may not bring a Foreign Corrupt Practices Act enforcement action in an instance of FCPA scrutiny undermines the “declination” definition used by certain FCPA Inc. participants.