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FCPA Flash Podcast – A Conversation With Moe Fodeman Regarding The Och-Ziff Restitution Order

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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 Moe Fodeman (who along with colleagues at Wilson Sonsini) successfully represented certain investors who were deemed “victims” of Och-Ziff’s bribery and secured a $138 million restitution order under the Mandatory Victims Restitution Act. During the podcast, Fodeman discusses the chronology leading up to the restitution claim, how (and why) the DOJ resisted “victim” status for his clients, and what impact, if any, the restitution award may have on future actions.

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Potpourri

Potpourri

[To the best of my recollection, my first introduction to the word “potpourri” was in watching Jeopardy which I was very fond of as a teenager and young adult. Rest in peace Alex Trebek]

Lingo

Daniel Kahn (Acting Chief of the DOJ Fraud Section) was the guest on this recent episode of the Compliance Perspectives Podcast. During the podcast, Kahn talks about COVID’s impact on DOJ enforcement and certain recent enforcement actions such as Goldman Sachs and Beam.

In terms of the DOJ’s mid-2000 revision to its “Evaluation of Corporate Compliance Programs” policy document, Kahn stated that it certainly is by no means a “game changer.” Call me old-fashioned, but I want to hear the DOJ Fraud Section Chief talk about the law and legal requirements not lingo. Yet, the podcast dishes up plenty of lingo (tone at the top, conduct at the top, tone of upper and middle management, empowering compliance, walking the walk, direct line to the board, dotted line to the board, etc.).

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Potpourri

Potpourri

Agreement in Principle

As highlighted in prior posts here and here in 2016 hedge fund Och-Ziff resolved a $412 million Foreign Corrupt Practices Act enforcement action concerning improper business practices in various African countries.

As highlighted in this 2018 post, former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.

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Friday Roundup

Roundup

Asset recovery, export finance, Och-Ziff related, and for the reading stack.

It’s all here in the Friday roundup.

Asset Recovery

Efforts by the U.S. government to combat foreign corruption are broader than just the Foreign Corrupt Practices Act. For instance, approximately ten years ago the DOJ announced a Kleptocracy Asset Recovery Initiative.

Recently, the DOJ announced:

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Forced To Brief The Issue, The DOJ Requests That The Court Order Och-Ziff To Pay Its “Victims” Between $150 – $188 Million

Bucket full of money

As highlighted in this 2018 post, in the aftermath of the 2016 Och-Ziff Foreign Corrupt Practices Act enforcement action (see here and here for prior posts) former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.

The DOJ opposed the request arguing, among other things, that Claimants had not show direct or proximate causation of quantifable harm from Och-Ziff’s conduct and that damages were too speculative.

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