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Richard Shine’s 1982 Lecture – “Enforcement Of The FCPA By The Department Of Justice”

1982

The year was 1982 and Richard Shine was Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit).  Shine gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).

Three things stand out from Shine’s lecture.

First, the lecture is populated with references to the FCPA’s legislative history.  On one level, this is not surprising given that in 1982 the DOJ was likely still finding its way as to the FCPA and its enforcement and it is logical that the legislative history – which evidences Congressional intent – would be a guide.

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Is Greg Norman A Saudi “Foreign Official”?

Norman

Even if you are not a professional golf fan (and most certainly if you are), you may have heard that there is a new golf league called LIV Golf.

As described on its website, LIV’s “new eight event series will take place from June – October 2022 across North America, Europe, Middle East, and Asia. It is an opportunity to reinvigorate golf through a structure that adds value to the entire sport while helping to bring new audiences to the game through a cutting-edge entertainment product.”

LIV Golf is financed by the Saudi Arabian Public Investment Fund (“PIF”), one of the largest sovereign wealth funds in the world, Because of this, as well as certain recent events in Saudi Arabia, LIV Golf has generated a substantial amount of controversy even though PIF also has made substantial investments in many companies including Cummins, FedEx, Pinterest, Uber, Visa and Walmart. (See here for PIF’s most recent Form 13F filing with the SEC).

Controversy aside, the question arises whether golfing legend Greg Norman (pictured – the CEO of LIV Golf Investments) as well as others associated with LIV are Saudi “foreign officials” under the Foreign Corrupt Practices Act given how that key element of the FCPA’s anti-bribery provisions has been interpreted by the DOJ and SEC.

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Stericyle Resolves A Net $59 Million FCPA Enforcement Action

stericle

Stericycle (an Illinois based medical waste disposal company) has been under FCPA scrutiny since mid-2017 (See here).

As highlighted here, approximately two months ago the company disclosed that it had “reached agreements in principle with the DOJ and SEC.” Specifically, Stericycle disclosed:

Yesterday, the DOJ and SEC announced (here and here) a parallel FCPA enforcement action against Stericycle.

The DOJ enforcement action involved this criminal information charging Stericycle with  two counts of conspiracy to violate (1) the FCPA’s anti-bribery provisions, and (2) the FCPA’s books and records provision. The criminal charges were resolved via this deferred prosecution agreement pursuant to which Stericycle agreed to pay a net $35 million criminal penalty.

The SEC enforcement action involved this administrative order finding that Stericycle violated the FCPA’s anti-bribery, books and records, and internal controls provisions pursuant to which the company agreed to pay a net approximate $24 million in disgorgement and prejudgment interest.

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A Closer Look At The Ng Jury Instructions

Closer Look

Foreign Corrupt Practices Act jury trials are rare.

Therefore, FCPA jury instructions are also rare.

Highlighted below are certain portions of the jury instructions from the recent trial of Roger Ng (a former managing director at Goldman Sachs) was who convicted by a jury of FCPA and related offenses for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.

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On Non-Self-Executing Agreements …

people thinking

As discussed in this previous post, in 2014 the Eleventh Circuit affirmed the FCPA (and related convictions) of Joel Esquenazi and Carlos Rodriguez. In doing so, the court defined the term “instrumentality” in the FCPA and concluded that a state-owned or state-controlled enterprise (SOE) could be an “instrumentality” if a two-factor control and function test were met such that SOE employees could be considered “foreign officials” under the FCPA.

The decision was flawed in several respects (see here for the prior post and see here for my Amicus Brief encouraging the Supreme Court to accept the case).

Among the flaws was that, instead of considering the relevant enacting FCPA legislative history as to the “foreign official” issue, the Court supported its conclusion with a flawed analysis of subsequent 1998 amendments to the FCPA as well as the impact of the OECD Convention.

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