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Year in Review Perspectives

In this prior post, I shared some “Year in Review” perspectives of others.

I also recommend the following reads as well.

See here for Gibson Dunn’s “2010 Year-End FCPA Update.”

See here for Markus Funk’s (Perkins Coie) Bloomberg piece, “Another Landmark Year: 2010 FCPA Year-In-Review and Enforcement Trends for 2011.”

See here for the FCPA Blog’s “2010 FCPA Enforcement Index.”

Bribery Act News

Vivian Robinson QC (General Counsel to the UK’s Serious Fraud Office) will be one of the participant’s in Securities Docket’s January 13th webcast – “100 Days and Counting: The Impact of the U.K. Bribery Act on U.S. Companies.” See here to register.

Speaking of the Bribery Act, the U.K. Telegraph recently ran two articles (see here and here) featuring Lord Goldsmith, the former U.K. Attorney General now at Debevoise & Plimpton (here).

Although one of the articles is titled, “Bribery Act: Lord Goldsmith Says Look to the U.S.”, his comments in the article demonstrate why the U.K. should not look to the U.S. when it comes to enforcing and implementing its new law. Lord Goldsmith says, “You can’t have a system where you can avoid the court at least sanctioning what has been done.” Elsewhere, Lord Goldsmith says “over a period of time it [the Bribery Act’s provisions] will become clearer, but that is the problem; it becomes clearer as a result of cases taking place – that means someone has been rung through the mangle first.”

No trend in FCPA enforcement has been more troubling during this era of the FCPA’s resurgence than the use of non-prosecution and deferred prosecution agreements – resolution vehicles that completely, or for all practical purposes, bypass judicial scrutiny. See here for the December 2009 GAO report on NPAs and DPAs and the lack of judicial scrutiny. One of the many troubling results of the frequent use of NPAs and DPAs in the FCPA context is that issues do not become more clear over time. If anything the issues have become more cloudy.

Nearly, thirty-five years since enactment of the FCPA, we are still left to wonder as to many basic FCPA elements – we know what the enforcement agencies’ interpretations are – but that is about it.

The other Telegraph articles states as follows. “The Serious Fraud Office is believed to have several potential cases lined up to test out the new legislation from April, although the Ministry of Justice anticipates it bringing just one major case a year.”

One of my “bold” predictions for 2011 (see here) is that enforcement of the U.K. Bribery Act will be disciplined and measured.

Finally, yesterday Gibson Dunn released (here) an informative summary of its recent meeting with Richard Alderman (Director of the U.K. Serious Fraud Office). Among the U.K. Bribery Act topics covered are gifts and hospitality, facilitating payments, jurisdiction, the unique judicial review of SFO decisions (query whether such mechanisms should be implemented in the U.S. – at least as to FCPA cases) and reporting issues.

Director Alderman and others at the SFO deserve “two thumbs up” for their policy of active engagement as the U.K. nears implementation of the Bribery Act. I spent a useful and informative afternoon at the SFO’s London offices and my Q&A exchange with Director Alderman can be found here.

The SFO’s active engagement policy is one that ought to be modeled by other enforcement agencies.

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