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Issues To Consider From The Sargeant Marine Enforcement Action

Issues

This prior post went in-depth into the recent Foreign Corrupt Practices Act enforcement action against Sargeant Marine Inc. (SMI) and this post continues the analysis by highlighting additional issues to consider.

Why Disclose?

For approximately 15 years, the DOJ has been encouraging business organizations to voluntarily disclose FCPA violations. Yet, time and time again, the DOJ undermines its goal by how it resolves certain enforcement actions.

The SMI matter is the latest example that should cause a board member, audit committee member or others involved in the voluntary disclosure decision to pause.

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Issues To Consider From The Enforcement Action Against Former Herbalife China Executives

Issues

This prior post detailed the DOJ’s recent criminal indictment against Yanliang Li (a citizen of China and former Managing Director of a Chinese division of Herbalife) and Hongwei Yang (a citizen of China and former head of the External Affairs Department of a Chinese division of Herbalife). Yang was charged with one count of conspiracy to violate the FCPA and Li was charged with one count of conspiracy to violate the FCPA, one count of perjury and one count of destruction of records in a federal investigation. In addition, the SEC charged Li with violating the FCPA’s anti-bribery provisions and aiding and abetting books and records and internal controls violations.

This post highlights additional issues to consider from the enforcement action.

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Second Circuit Affirms Seng’s Conviction

Seng2

Previous posts here, here and here highlighted Ng Lap Seng’s Second Circuit appeal after a federal jury convicted him in July 2017 of two counts of violating the FCPA, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”

Recently, in this decision the Second Circuit affirmed Seng’s conviction. As stated in the opinion, the issues on appeal were: (i) whether the United Nations is an “organization” within the meaning of 18 U.S.C. 666; (ii) whether the jury was correctly instructed as to controlling law, particularly as pertains to bribery in light of McDonnell v. United States (see here for the prior post concerning the Supreme Court’s 2016 decision construing 18 USC 201 – the domestic bribery statute – particularly the meaning of “official act”; and (iii) whether the evidence was insufficient to support a guilty plea.

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Checking In On Seng’s Appeal

Seng2

As highlighted in this prior post, in July 2017 (after a long trial) a federal jury convicted Ng Lap Seng of two counts of violating the FCPA, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”

This prior post previewed Seng’s appeal and this prior post highlighted Seng’s opening brief. The FCPA issues on appeal concern the FCPA’s corrupt intent and obtain or retain business elements.

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Next Up For The Second Circuit – An Opportunity To Construe The FCPA’s Corrupt Intent And Obtain And Retain Business Elements

Judicial Decision

Fresh off its recent decision in U.S. v. Hoskins (see here and here for prior posts), the Second Circuit has another Foreign Corrupt Practices Act appeal on its docket.

This July post previewed the FCPA (and related) appeal of Ng Lap Seng who was convicted of two counts of violating the FCPA, one count of paying bribes and gratuities, one count of money laundering and two counts of conspiracy “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”

Recently Seng formally filed this appellate brief. The FCPA issues on appeal concern the corrupt intent element and the obtain or retain business element. There is an abundance of information in the legislative history regarding these topics, the open question is whether Seng’s lawyers will fully take advantage of it.

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