I wanted to return to the FCPA criminal trial and address more trial tactics. Let’s start with jury selection. There is no doubt that the government has been successful in FCPA criminal trials, although frequently the charges are brought with other criminal charges, thereby increasing the chance for victory on some counts, which is all that really matters. As a former federal prosecutor in the...
The recent House Judiciary hearing on FCPA oversight focused on a proposal to enact an “adequate procedures” defense for corporate liability under the FCPA. How such a defense would work reminds me of the old adage – “the devil is in the details.” Many commentators have pointed to the UK Bribery Act defense of “adequate procedures” and the guidance that has followed. The Ministry of...
If you tell the truth you don’t have to remember anything. ~Mark Twain It is a crime to lie under oath. Government regulators are acutely aware of the increase in lying, false statements, and obstructionist conduct by witnesses, subjects of investigations and attorneys who represent them. In a recent speech, Robert Khuzami (copy here)— the SEC’s Director of Enforcement, outlined what he called an “epidemic...
If you tell the truth you don’t have to remember anything. ~Mark Twain It is a crime to lie under oath. Government regulators are acutely aware of the increase in lying, false statements, and obstructionist conduct by witnesses, subjects of investigations and attorneys who represent them. In a recent speech, Robert Khuzami (copy here)— the SEC’s Director of Enforcement, outlined what he called an “epidemic...
While there has been a lot written about recent FCPA trials — Lindsey Manufacturing and the ongoing DC federal court Shot Show sting prosecution — I think it is important to examine trial tactics and strategy for defending against an FCPA criminal prosecution. I will outline some tactical approaches in a few posts. My post today is focused on defending an individual. The approach for...
As promised, I wanted to address some of the nuts and bolts of a due diligence review of a third party agent. The focus of this due diligence inquiry is “reasonable inquiries” to identify potential risks of bribery by a third party. Of course, the specific aspects of the inquiry will change depending on the particular facts surrounding the third party, the presence of red...
As promised, I wanted to address some of the nuts and bolts of a due diligence review of a third party agent. The focus of this due diligence inquiry is “reasonable inquiries” to identify potential risks of bribery by a third party. Of course, the specific aspects of the inquiry will change depending on the particular facts surrounding the third party, the presence of red...
If you look through the internet sites on the FCPA, you see numerous advertisements of companies offering due diligence reports — all of which may be needed for third party agents, joint venture partners, and mergers and acquisitions. Due diligence has turned into a cottage industry. The growth of such services reflects the greater demand by companies seeking to avoid FCPA liability. But lets start...
Chairman Sensenbrenner Well, the message was clear yesterday to DOJ — the House intends to “update” the FCPA statute. Crime Subcommittee Chairman Sensenbrenner made it clear a bill is coming, and it is likely the bill will pass the House. What happens after that? Who knows. The FCPA’s history has been cyclical in terms of Congressional oversight and modification. When business interests coalesce, Congress...
In a November 2009 speech, Assistant Attorney General for the Criminal Division Lanny Breuer outlined an aggressive FCPA enforcement agenda targeting pharmaceutical and medical device companies. He noted that the depth of government involvement in foreign health systems, combined with fierce industry competition and an economic climate in which companies are tempted to invest fewer resources in compliance efforts, poses a significant risk of corruption....
