As highlighted in this recent post, Walmart and the government seem to be at an impasse regarding resolution of Walmart’s FCPA scrutiny first disclosed in late 2011. As highlighted by Bloomberg, one reason appears to be side litigation between the government and Walmart concerning certain privileged issues.
In late June 2018 the Fourth Circuit, in this decision, agreed with Walmart’s position. Although the opinion does not technically mention Walmart, Bloomberg reports that “two people familiar with the matter confirmed that the company was Walmart.” Moreover, this is fairly obvious to anyone closely following Walmart’s long-standing scrutiny.
As highlighted below, the Fourth Circuit’s opinion was based on “standard principles of contract interpretation” and is clearly not the most exciting decision to read. However, this is the second decision in the FCPA context in recent weeks in which a court disagreed with the government’s interpretation of a document relevant to an FCPA inquiry. (See here for the recent decision in SEC v. Cohen et al in which a court disagreed with the SEC’s position regarding a tolling agreement).
