Comings and goings, more judicial scrutiny not less is needed, and once again not the media’s finest moment. It’s all here in the Friday roundup.
Comings and Goings
In the past few months, DOJ Deputy Assistant Attorney General Trevor McFadden has seemed to be the primary DOJ spokesperson when it comes to the Foreign Corrupt Practices Act (see prior posts here, here and here detailing McFadden’s speeches).
This may soon come to an end as President Trump recently nominated McFadden to the federal bench.
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When Hui Chen was hired as DOJ compliance counsel in Fall 2015 it was a two-year contract position. As reported here, Chen is leaving the DOJ which is hardly surprising given her recent social media activity. (See here for the position announcement.)
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Christopher Wray has been nominated by President Trump to be the Director of the FBI. Wray, a former Assistant Attorney General in charge of the DOJ’s Criminal Division, leads King & Spalding’s FCPA group.
When Trevor McFadden recently stated that his “intent is for our FCPA investigations to be measured in months, not years,” this previous post highlighted that Wray said the same thing years ago when he was at the DOJ. Specifically, in this 2005 speech Wray talked about “real-time enforcement” and stated: “in other words, punishing wrongdoers promptly after they commit their crimes. Simply put, speed matters in corporate fraud investigations . The days of five-year investigations, of agreement after agreement tolling the statute of limitations-while ill-gotten gains are frittered away and investor confidence sinks-are increasingly a thing of the past.”
More Judicial Scrutiny, Not Less
Prior posts have highlighted how there seems to be cheerleaders of more FCPA and related enforcement regardless of enforcement theory, regardless of resolution vehicle used, regardless of settlement amount, and regardless of the end result.
This FCPA Blog post from the Director of Operations at the World Bank Integrity Vice Presidency is a good example.
In the post, the Director seems not to like judicial scrutiny in cases he mentions such as the Supreme Court’s decision in U.S. v. McDonnell in which the court unanimously rejected “the government’s boundless interpretation of the federal bribery statute” or a recent prosecution in Canada where an individual bribery prosecution failed because the court found that a wiretap application “was nothing more than speculation, gossip and rumor.”
If the rule of law means anything, what the bribery and corruption space needs is more judicial scrutiny of enforcement theories, not less.
Once Again, Not the Media’s Finest Moment
This recent post asked why does the media have such difficulty accurately describing the FCPA?
Related to this, several posts this week (here, here and here) covered the Supreme Court’s Kokesh decision.
It is pretty alarming how a major newspaper like the Wall Street Journal is apparently incapable of accurately writing about Kokesh – a short Supreme Court decision. For instance, this article states: “The Supreme Court .. said the SEC has five years to sue suspected wrongdoers after the fraud occurs.”
That was not even the issue before the court.
The issue before the court, as quite clearly stated in the opinion, was “whether §2462 applies to claims for disgorgement imposed as a sanction for violating a federal securities law.” The court held: “disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”
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