Prosecutorial Common Law
[This post was originally published on FCPA Professor on March 16, 2011 by Michael Levy and remains one of the best guest posts ever published on FCPA Professor. In the post, Levy (a former Assistant United States Attorney in the District of Columbia and law clerk to U.S. Supreme Court Justice Lewis F. Powell Jr.).
Approximately 15 years later, has anything materially changed?
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We have seen this movie before, and it ends with the government’s interpretation of a federal criminal statute knocked down, 9-0, by the United States Supreme Court.
Prosecutors don’t set out deliberately to interpret criminal statutes in ways that convict hundreds of people on the basis of a standard that not a single Supreme Court Justice finds supportable, but it has happened already and may well happen again in the context of the Foreign Corrupt Practices Act because of a phenomenon I’ve referred to for a number of years as “prosecutorial common law” (see here).
Analysis of the New FCPA Guidelines Buries the Lead: Why We Can Expect Spikes In US-Company Whistleblowing
A guest post from T. Markus Funk and the Hon. Virginia M. Kendall.
The U.S. Department of Justice’s updated FCPA guidelines, released June 9, mark a high-profile strategic shift in enforcement priorities. The bulk of the law firm commentary has focused on internal compliance and investigation, suggesting that the FCPA enforcement under the Trump Administration may not be as dead as initially thought. And that is entirely reasonable, as far as it goes.
However, as detailed in a recent Law360 analysis, a less-discussed, yet arguably equally significant, implication of the new guidelines is the potential spike in U.S. companies reporting corrupt practices by foreign competitors.
Insight On The Pintado Matter
This post is from Andrew Feldman (Feldman Firm PLLC).
Since President Trump issued the Executive Orders “pausing” the enforcement of the FCPA, lots of large law firms decried the potential end of the FCPA and worried that there would be a steep decline in FCPA investigations and prosecutions. Attorney General Pam Bondi had also emphasized that the FCPA should be used to prosecute narcotraffickers, not foreign nationals engaged in extraterritorial conduct which poses no threat to American interests.
In mid-March of this year and in the heart of this FCPA pause panic, the government travelled to Costa Rica to extradite the Firm’s client, Cristian Patricio Pintado Garcia. Mr. Pintado is an Ecuadorian national with no status in the United States who had been indicted in 2022 for violations of the FCPA and money laundering. Mr Pintado had been languishing in a Costa Rican prison since August of last year when he was arrested shortly after traveling from Ecuador.
Paying Whistleblowers In UK Criminal Cases – Why The US Model Won’t Work in the UK Legal System.
A guest post from Judy Krieg. Krieg is currently a partner at DLA Piper and previously served as a Joint Head of Fraud, Bribery, and Corruption at the UK Serious Fraud Office. Her experience also includes being an enforcement lawyer at the UK Financial Services Authority (now the Financial Conduct Authority) handling criminal and regulatory matters and in-house experience, including as Chief Compliance Officer of Rolls Royce plc and Willis and in other compliance roles at Microsoft and Red Robin Gourmet Burgers.
The UK Serious Fraud Office (SFO) is suggesting that the UK should “follow the US” and find a way to pay whistleblowers in corporate criminal cases. But the UK is not the US. The complexities of dealing with – much less paying – monies in corporate criminal cases are clear from US and UK experience. I know this first-hand from the Rolls-Royce plc (RR) investigation (resulting in 18 criminal charges resolved through DPAs with the US Department of Justice (DOJ) and SFO), as well as the Red Robin Gourmet Burgers (RRGB) SEC investigation in the US.
500.com and the Specter of “Chinese-Issuer” Enforcement
A guest post from Eric Harris (a White Collar Defense Attorney and Anti-Corruption Compliance Consultant).
The DOJ and SEC recently announced an enforcement action against BIT Mining Ltd., which is the successor entity of 500.com. The action was brought against Bit Mining Ltd. due to 500.com’s migration from the online sports lottery business in 2021 to focus on cryptocurrency mining. 500.com’s activities are the focus of the agencies’ enforcement action against BIT Mining Ltd. as it is the responsible entity due to the nature of inherited FCPA violations. As such, 500.com is referred to as the entity at issue here.
Since the release of 500.com’s enforcement action, some have wondered whether the 500.com enforcement action is the first FCPA enforcement against a “Chinese issuer” (while acknowledging that 500.com was not technically a Chinese issuer). However, there are some practical reasons a similar enforcement action has not previously been brought with the fact pattern therein. Moreover, there are additional likely causes for the lack of a similar fact pattern in prior FCPA enforcement activity.