Imagine that a DOJ prosecutor thinks you have violated the Foreign Corrupt Practices Act.
They seek criminally charges against you and marshal the full resources of the government against you.
Your reputation and future (and indirectly that of your family) is on the line as well as your pocketbook and your liberty.
You believe that the government’s interpretation of facts and/or legal elements are wrong and you exercise your constitutional right to a trial and put the government to its burden of proof.
Are you “attacking the FCPA”?
Richard Cassin (editor of the defunct FCPA Blog) seems to think so in this recent Substack post.
Context and/or factual accuracy were seldom the strengths of several FCPA Blog posts and this post analyzes Cassin’s recent post.
He begins:
“The Foreign Corrupt Practices Act is in real peril. The latest DOJ guidance calls for a surge of enforcement actions against individuals. If that happens, it will open the door to numerous legal attacks on the FCPA at a time when there’s no one there to defend it.
Here’s the situation on the ground: The White House and Main Justice are both on the record now in opposing much of the FCPA’s enforcement history.
First came the President’s February Executive Order when he paused all enforcement for 180 days. As a predicate, he said (without evidence) that the FCPA has been “systematically, and to a steadily increasing degree, stretched beyond proper bounds.” He described enforcement as “overexpansive and unpredictable.”
Let’s pause here.
As highlighted in this prior post, many of the issues discussed in the Executive Order (the pause lasted 118 days during which certain aspects of FCPA (and related) enforcement continued) regarding the “proper bounds” of FCPA enforcement and whether enforcement had become “overexpansive and unpredictable” had been percolating in the FCPA space over the past 10-15 years.
Large portions of the Senate’s FCPA hearing in 2010 and the House’s FCPA hearing in 2011 were focused on these issues and more broadly FCPA reform.
The leader of this movement – so it seemed – was Andrew Weissmann (hardly a fan of President Donald Trump). Just one month prior to the November 2010 Senate hearing, Weissmann was the lead author of “Restoring Balance: Proposed Amendments to the FCPA” written on behalf of the U.S. Chamber Institute for Legal Reform.
Weissmann wrote:
“[T]he primary statutory interpretive function is still being performed almost exclusively by the DOJ Fraud Section and the SEC. Notably, these enforcement agencies have been increasingly aggressive in their reading of the law.
During the 2010 Senate hearing, Senator Amy Klobuchar (D-MN), who would subsequently run for President, stated:
“[O]ne of the basic principles of due process is that people in companies have to be able to know what the law is in order to comply with it. And I will tell you that I have heard from many very good standing companies in my State that they do not always know what behavior will trigger an enforcement action.
Cassin next assertion that “the DOJ was always there to defend the FCPA,” but apparently isn’t there now to “defend” the FCPA – well, that is just plain absurd.
At present, there are at least four FCPA enforcement actions against individuals that are actively being “defended” by the DOJ in court: U.S. v. Hobson, U.S. v. Berko, U.S. v. Roger Alejandro Pinate Martinez et al; and U.S. v Ramon Alexandro Rovirosa Martinez.
In each of these matters, the defendants have filed substantive, procedural, and/or evidentiary motions challenging various aspects of the DOJ’s case. In each instance, DOJ prosecutors have “defended” the government’s theory of prosecution.
In September, the DOJ proceeded to trial in an FCPA enforcement action against Carl Zaglin in which the jury convicted.
In short, Cassin’s seeming suggestion that DOJ prosecutors in FCPA enforcement actions are now rolling over and playing dead is inaccurate and absurd.
In the past few months and currently there have been 5 unique instances of the DOJ doing the exact opposite (likely representing one of the more active periods of FCPA trial / pre-trial activity in history).
Cassin next asserts that the June FCPA Guidance by the DOJ “radically redirected enforcement away from corporations and toward individuals.” (emphasis in the original).
Here is the DOJ guidance.
I challenge anyone to read that guidance side by side with other DOJ FCPA guidance over the past 15-20 years and highlight the “radical redirections” found in the guidance.
See here for the prior post titled “Many Of The Topics Discussed In The FCPA Guidelines Are Not New” (with various links to prior original source documents) as well as this post with the same title (also including links to prior original source documents).
For the record, in 2025 (and more specifically since August) there have been two corporate FCPA enforcement actions – a number which matches the total number of DOJ corporate FCPA enforcement actions in 2021 and 2015.
Cassin continues:
“That’s why so many [individuals charged with FCPA offenses] take their chances at trial. So the DOJ’s promised surge against individuals means plenty of tests for the FCPA in court.
Does the DOJ really want a stream of defendants attacking the FCPA? At trial, individuals will argue that the FCPA is void for vagueness. They will assert that many terms in the FCPA — foreign official, instrumentality, agent, knowing, obtaining or retaining business — are shot through with ambiguity and render the entire law unenforceable.” (Emphasis in original).
In the FCPA’s nearly 50 years, there have been 24 trials. For context, in FCPA history the DOJ has charged approximately 325 individuals with FCPA criminal offenses. In other words, the trial ratio is approximately 7% of all individual FCPA enforcement actions. Is that “many”?
Cassin’s suggestion that “judges usually” agree with DOJ positions when it comes to defendant assertions about FCPA vagueness or ambiguity ignores the many instances in which federal court judges have found various elements of the FCPA vague or ambiguous (See this prior post for several examples). (See also this podcast with Judge Shira Scheindlin who oversaw several FCPA cases in which she describes the difficulty of interpreting the “ambiguous” FCPA).
Cassin next asserts that “so-called expansive [FCPA enforcement] came from normal prosecutorial activity and normal judicial review with traditional deference to the government’s position.”
Nonsense.
Take just two FCPA enforcement theories that gained steam over the past 15-20 years.
First, the theory that employees of various foreign healthcare systems are “foreign officials” under the FCPA and thus occupy a status similar to President or Prime Minister in a foreign country. The DOJ has advanced this enforcement theory in 35 corporate enforcement actions and not one of these enforcement actions were subject to “normal judicial review.” A useful data point in examining the legitimacy and validity of this enforcement theory may be found in analyzing the number of criminal charges filed against individuals associated with these 35 companies based on this enforcement theory. The answer is zero, zilch, nada.
Second, is the enforcement theory that offering internships (even unpaid) or job opportunities to family members of alleged “foreign officials” is a form of bribery. The DOJ has advanced this enforcement in 6 corporate enforcement actions and not one of these enforcement actions were subject to “normal judicial review.” Similar to above, in not one of these 6 instances did the DOJ file criminal charges against company employees.
In other words, just two FCPA enforcement theories – 41 corporate actions with no “normal judicial review” and zero individual actions.
The FCPA Blog was a leading FCPA misinformation source and Cassin continues to peddle false and misleading FCPA narratives.
