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Friday Roundup

Yet another instance, save the date, scrutiny updates, on point, FCPA Inc. tidbit, and for the reading stack.  It’s all here in the Friday roundup.

Yet Another Instance

The instances are so numerous, they are hard to keep track of.  In the latest instance of an FCPA enforcement attorney joining a law firm to provide FCPA defense services, earlier this week Paul Hastings announced here as follows.

“Nathaniel Edmonds has joined the firm as a partner in the Global Compliance and Disputes practice, based in Washington, DC. Mr. Edmonds joins from the Department of Justice (DOJ), where he was an Assistant Chief of the Fraud Section, Foreign Corrupt Practices Act Unit in the Criminal Division. At the time of his hire, Mr. Edmonds was one of the longest-tenured FCPA prosecutors. […] In recent years, Mr. Edmonds was responsible for directly supervising up to half of the DOJ’s investigations into transnational bribery. He also drafted portions of the FCPA Resource Guide published in November 2012, which details the contours of the FCPA legal regime, the policy positions underlying the enforcement strategy, and the relevance of past enforcement positions taken by the DOJ and the SEC. During Mr. Edmonds’ tenure, the DOJ has investigated and resolved more cases against corporations and has charged, tried, and convicted more individuals under the FCPA than in any other similar period in history.”

This Blog of Legal Times article stated as follows.  “Edmonds said that FCPA investigations and enforcement has increased in recent years and that the practice would likely continue to be robust for attorneys.”

That Edmonds played a supervisory role, as a DOJ enforcement attorney, in helping create the current FCPA enforcement landscape is precisely the reason why I have long argued that it is in the public interest (recognizing the niched nature of both the DOJ and SEC FCPA units) that all FCPA enforcement attorneys should be prohibited, when leaving the government, from providing FCPA defense or compliance services for a five-year time period.  For additional reading see this piece I co-authored as well as this prior post among several others.

Indeed, Paul Hastings specifically touted in its release Edmonds’ “connections to U.S. government agencies.”

Save the Date

The Dow Jones Global Compliance Symposium is April 2-3 in Washington, D.C.

Last year, Christopher Matthews at Wall Street Journal Corruption Currents described (here) the panel I participated in as “an FCPA debate for the ages” – “for FCPA geeks, this was Ali v. Foreman and Frazier.  A battle royale.  A bloodbath.”

On April 2nd I will be participating in a panel titled “The FCPA:  Does It Need Further Clarifying” along with Paul McNulty (Baker & McKenzie and former Deputy Attorney General) and David Yawman (Senior Vice President & Chief Compliance and Ethics Officer, PepsiCo, Inc.).  The panel is being moderated by Joe Palazzolo of the Wall Street Journal.

Scrutiny Updates

BHP Billiton

As noted in this prior post, in April 2010 BHP Billiton announced it was under FCPA scrutiny.  Earlier this week, various media sources reported that BHP Billiton’s FCPA scrutiny has grown.  As summarized by this Reuters article.

“The U.S. government is investigating a possibility of corrupt practices by the world’s largest mining company, BHP Billiton, the company confirmed Wednesday after media reports about an inquiry into its sponsorship of the 2008 Beijing Olympics.  Fairfax Media in Australia reported that the U.S. Department of Justice and the Australian Federal Police were investigating allegations that BHP Billiton had provided inducements, hospitality and gifts to officials from China and other countries. The U.S. Justice Department told Fairfax, in response to a Freedom of Information Act request, that it was conducting “law enforcement proceedings” involving BHP Billiton, which supplied materials for the gold, silver and bronze medals used in Beijing. The Australian police confirmed that they had been working with their foreign counterparts and local regulators on Australian aspects of the U.S. investigation.  BHP Billiton said it had been cooperating with the “relevant authorities,” and in response to media queries it said it believed it had not broken any laws in its Olympics sponsorship. “BHP Billiton is fully committed to operating with integrity and the Group’s policies specifically prohibit engaging in bribery in all its forms,” the company said in an e-mailed statement.”


As noted in this prior post, Embraer previously disclosed it was under FCPA scrutiny.  Earlier this week, Embraer updated its disclosure and stated as follows.

We received a subpoena from the SEC in September, 2010, which inquired about certain operations concerning sales of aircraft abroad. In response to this SEC-issued subpoena and associated inquiries into the possibility of non-compliance with the U.S. Foreign Corrupt Practices Act, or FCPA, we retained outside counsel to conduct an internal investigation on transactions carried out in three specific countries.  Further, the Company has voluntarily expanded the scope of the internal investigation to include two additional countries and has reported on those matters. The investigation remains ongoing and we, through our outside counsel, continue to cooperate fully with the SEC and U.S. Department of Justice, which are the authorities responsible for reviewing the matter. The Company, with the support of our outside counsel, has concluded that it is still not possible to estimate the duration, scope or results of the internal investigation or government’s review. In the event that the authorities take action against us or the parties enter into an agreement to settle the matter, we may be required to pay substantial fines and/or to incur other sanctions. The Company, based upon the opinion of our outside counsel, believes that, there is no basis for estimating reserves or quantifying any possible contingency.”

On Point

Stuart Altman (Hogan Lovells, and a former Assistant U.S. Attorney in the E.D. of N.Y.) stated as follows in a recent Law360 Q&A.

“Q: What aspects of your practice area are in need of reform and why?

A: The inability of companies and individuals accused of wrongdoing to actually defend their selves. If you ask most white collar criminal defense lawyers they will tell you that they spend most of their time figuring out how to cooperate with the government not defend their clients. Investigations are ultimately focused on reporting to the government instead of building a defense. The government has made it incredibly onerous for a company to fight accusations of wrongdoing. The danger of huge fines, debarment and threats against individual employees all combine to create a huge disincentive to fight even when you believe your client is in the right. I think we need to find a better balance that allows the government to do its job but doesn’t create a climate of coerced surrender.”

William Burck (Quinn Emmanuel, and former Special Counsel and Deputy Counsel to President Bush a well as a former Assistant U.S. Attorney in the S.D. of N.Y.) stated as follows in a recent Law360 Q&A.

“Q: What aspects of your practice area are in need of reform and why?

A: Overcriminalization is a troubling trend in the U.S. Unfortunately, some of what is considered “white collar crime” is really the criminalization of questionable, but not truly fraudulent, business activities or the misuse of criminal process to resolve what should be civil disputes. True fraud and theft should be targeted, of course. No one thinks Bernie Madoff should be spared. But prosecutors sometimes twist poor or disfavored business practices into allegedly criminal misbehavior.”


This Washington Post article states as follows concerning future opportunities for Washington D.C. law firms.

“At most firms, mainstay Washington specialties such as antitrust, health care and intellectual property continued to help drive business. Cybersecurity and Foreign Corrupt Practices Act work — two booming areas for companies — are poised to bring in more legal work for years to come.”

This Am Law Daily article states as follows concerning New York-based law firms.

“Government investigations – especially the LIBOR antitrust investigations and Foreign Corrupt Practices Act and False Claims Act work – are keeping hundreds of fee-earners busy, and New York firms with strong litigation departments are particularly well positioned to benefit.”

For the Reading Stack

In “Policing The Firm,” Daniel Sokol (a leading antitrust authority at the University of Florida Levin College of Law) asks if criminal antitrust enforcement could learn from FCPA enforcement.  Sokol argues it can and he explores the lack of corporate monitors in antitrust actions and asks why antitrust remedies do not resemble remedies in other areas of corporate crime, with the routine imposition of monitors, such as the FCPA.

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