Law Commons^™

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

Canada's Integrity Regime: The Corporate Grim Reaper, Jessica Tillipman, Samantha Block

GW Law Faculty Publications & Other Works

In 2019, SNC-Lavalin made global headlines after it was revealed that the Canadian Prime Minister, Justin Trudeau, had interfered in the prosecution of the company for the bribery of Libyan officials. Although the scandal was primarily viewed as political, it also highlighted flaws in Canada’s Integrity Regime; specifically, the regime’s unworkable and draconian approach to debarment. This Article will address the pressing need in Canada to modify its debarment remedy and enact a system that more effectively protects the government’s interests. To illuminate the current issues facing Canada’s Integrity Regime, this Article will begin by examining Canada’s debarment system, outlining …

United States V. Hoskins: An Opportunity For The Second Circuit To Limit The Abusive Reach Of The Fcpa, Christopher D. Man, Kyllan J. Gilmore

Pace Law Review

No abstract provided.

Foreign Corruption As Market Manipulation, Gina-Gail S. Fletcher

Articles by Maurer Faculty

On March 6, 2019, the Commodity Futures Trading Commission (CFTC) announced that it would be taking an active role in prosecuting violations of the Commodities Exchange Act (CEA) that involve foreign corruption.[11 On the same date, the CFTC published an enforcement advisory further signaling its intention to investigate and prosecute violations of the laws and regulations of the CEA linked to foreign corrupt practices, such as violations of the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits US-based businesses from engaging in corrupt practices, such as bribery, in foreign countries in which they do business. Currently, both the Department of …

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Karen Woody

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations …

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

Karen Woody

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

Fcpa Enforcement Against U.S. And Non-U.S. Companies, Michael S. Diamant, Christopher W.H. Sullivan, Jason H. Smith

Michigan Business & Entrepreneurial Law Review

This Article explores how U.S. authorities have enforced the FCPA against non-U.S. companies and tests the perception that the FCPA disproportionately impacts U.S. businesses. After briefly discussing the FCPA, its enforcement, and its reach, this Article examines corporate FCPA enforcement activity since the statute’s enactment in 1977. It finds that foreign firms have actually fared worse under the FCPA despite the fact that DOJ and the SEC have brought more enforcement actions against domestic companies in absolute terms. The average cost of resolving an FCPA enforcement action to non-U.S. corporations of resolving an FCPA enforcement action has been more than …

Corporate Criminal Liability: Toward A Compliance-Orientated Approach, Gustavo A. Jimenez

Indiana Journal of Global Legal Studies

Under U.S. federal law, a corporation can be held criminally liable for the crimes of its employees and agents. The Department of Justice's U.S. Attorneys' Manual lays out a list of factors prosecutors can evaluate when deciding whether or not to prosecute a corporate entity. The Department of Justice (DOJ) prosecutors have various tools at their disposal, including deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) as alternatives to going to trial. Prosecutors have used DPAs and NPAs in recent cases, allowing the government to ensure that corporate entities comply with investigations, enact compliance programs, and continue to follow laws …

Cash For Your Conscience: Do Whistleblower Incentives Improve Enforcement Of The Foreign Corrupt Practices Act?, Amy Deen Westbrook

Washington and Lee Law Review

No abstract provided.

Tweet To Defeat Government Bribes: Limiting Extraterritorial Jurisdiction Under The Foreign Corrupt Practices Act To Combat Global Corporate Corruption, Sarah Routh

Vanderbilt Journal of Transnational Law

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA's jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have …

Honest Or Excluded? A Gender Analysis Of Foreign Corrupt Practices Act And Chicago City Council Defendants, Juliet S. Sorensen

Texas A&M Law Review

This article analyzes two corruption data sets through the lens of gender: defendants convicted under the criminal anti-bribery provisions of the Foreign Corruption Practices Act, and defendants convicted of federal anti-corruption crimes while serving on the Chicago City Council. In both instances, the data points to a much larger number of convictions of men than women. While a single cause is difficult to pinpoint, perhaps the most compelling explanation is that social norms associated with gender provide women with fewer opportunities for corruption. By contrast, the homophily of patronage networks, long cited as breeding grounds for corruption, has for generations …

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

University of Michigan Journal of Law Reform

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

Ocasio V. United States: The Supreme Court’S Sudden Expansion Of Conspiracy Liability (And Why Bribe-Taking Foreign Officials Should Take Note), Michael F. Dearington

Washington and Lee Law Review Online

Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort those very same shop owners in violation of the Hobbs Act. The corollary is that a shop owner can, in theory, conspire to extort himself. If a shop owner can conspire to extort himself as a matter of law, why can’t a bribe-taking foreign …

A Compromise - Adding A Knowledge Requirement To Rule 13b2-2 Of The Securities Exchange Act Of 1934, Danielle K. Shaffer

Akron Law Review

The United States Securities and Exchange Commission (SEC) was established to protect investors and support fair and efficient financial markets. To combat bribery of foreign officials in the practice of business, the Foreign Corrupt Practices Act enacted Section 13(b) of the Securities Exchange Act of 1934. Generally, Section 13(b) establishes requirements for the financial records, internal controls, and accounting of public companies. Section 13(b) maintains stricter requirements for financial records for the public and SEC to easily detect illegal activity as well as to deter the companies from participating in these activities. Following the Sarbanes-Oxley Act of 2002, the SEC …

To Be A "Whistleblower," Or Not To Be A "Whistleblower? " That Is The Question-Whether 'Tis Nobler In The Mind Of The Courts To Suffer For Reporting Wrongdoing To The Sec Or Employers Internally: Examining The Recent Circuit Split Regarding The Definition Of A Whistleblower Under Dodd-Frank, Luke I. Landers

The Journal of Business, Entrepreneurship & the Law

Under the current state of the law, the circuit courts are split over whether an employee must report corporate wrongdoing directly to the Securities and Exchange Commission (SEC), or report wrongdoing to a company’s management in order to receive whistleblower protection under Dodd–Frank. The resolution of this circuit split not only will have implications for American employees caught in situations similar to the fiction above, but also will provide a prime opportunity for the Supreme Court to clarify how courts are to understand the interpretive and deferential relationship between the language of legislative statutes and their corresponding bureaucratic regulations. In …

No Smoke And No Fire: The Rise Of Internal Controls Absent Anti-Bribery Violations In Fcpa Enforcement, Karen E. Woody

Scholarly Articles

The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign public officials in order to obtain or retain business. It is, for all intents and purposes, an anti-bribery statute. To detect bribery, the FCPA contains accounting provisions related to bookkeeping and internal controls. The books and records provision requires issuers to make and maintain accurate books, records, and accounts; likewise, the internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations. If one considers the analogy that bribery is the “fire” in FCPA enforcement actions, and books and records violations …

“Pay To Prescribe”: A Case For Strengthened Enforced Of The Fcpa In The Global Pharmaceutical Industry In 2017 And Beyond, John T. Jessee Jr.

Law Student Publications

This paper will use recent Foreign Corrupt Practices Act (FCPA) enforcement actions to argue that a revamped and increased enforcement of the FCPA’s anti-bribery provisions in the pharmaceutical industry will be an absolutely critical task in 2017 and beyond, as there is much work to be done in cleaning up the industry. The paper will begin by outlining a brief history of the FCPA and examining its basic enforcement provisions. It will then examine the nature of the pharmaceutical industry’s bribery through a detailed analysis of several recent high profile enforcement cases within the industry. Lastly, the paper will propose …

United States V. Esquenazi: Injecting Clarity Or Confusion Into The Foreign Corrupt Practices Act, Amy Lynn Soto

University of Miami Inter-American Law Review

The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 to criminalize the bribing of foreign officials in order to obtain or retain business. In recent years, there has been an increase in bribery investigations and prosecutions by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC). This increase in enforcement coexists with an ambiguity regarding the scope of the FCPA.

The scope of the FCPA hinges on the determination of who is a foreign official. The FCPA defines a foreign official as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, …

Merger And Acquisition Due Diligence Part Ii- The Devil In The Details, James A. Sherer, Taylor M. Hoffman, Kevin M. Wallace, Eugenio E. Ortiz, Trevor J. Satnick

Richmond Journal of Law & Technology

Our prior scholarship examined the legal and technical challenges involved in modern Merger & Acquisition ("M&A") due diligence practices associated with transactions ("Deals"), given recent but steady advances in technology and related increases in sophistication seen in Deal participants-primarily the organizations or assets targeted (the "Targets") as part of the Deal, and the organizations that pursued and/or resulted from the Deal (the "Acquirers"). We then proposed a framework addressing five particular verticals of interest and concern: data privacy ("DP"), information security ("IS"), e-Discovery, information governance ("IG"), and the due diligence and record keeping associated with the Deal itself ("Deal Information") …

Dodd-Frank’S Extension Of Criminal Corporate Liability Through The Foreign Corrupt Practices Act: Enabling Whistleblowers And Monitoring Conflict Minerals, Tim Bakken

Pace Law Review

In a sense, through its whistleblower provision, the Dodd-Frank Act has enabled the government to use corporate employee whistleblowers to support criminal prosecutions. That position finds agreement in this article, but the conclusion reached is that the results to be obtained from the whistleblower provision will be positive. Through an analysis of the Dodd-Frank Act, this article discusses further the new reach of the FCPA, particularly in light of the whistleblower and conflict-minerals provisions in the Dodd-Frank Act. Finally, this article concludes that although the new provisions can be costly, the provisions are beneficial. The traditional corporate model is now …

Foreign Corrupt Practices Act: Pleading Parent­Subsidiary Liability, Alexander Avery

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Policing The Firm, D. Daniel Sokol

D. Daniel Sokol

Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrongdoing. Thus far, antitrust scholarship and policy have ignored this insight in the cartel context. This Article suggests how to improve antitrust enforcement by focusing enforcement efforts on changing the incentives of internal firm compliance.

Rising To China's Challenge In The Pacific Rim: Reforming The Foreign Corrupt Practices Act To Further The Trans-Pacific Partnership, Michael B. Runnels

Seattle University Law Review

It is a commonly held myth that the rise of U.S. global economic hegemony rests upon a free trade philosophy. On the contrary, protectionist trade policies were central to galvanizing American industrialization. This misconception lies at the heart of why the trade liberalization policies enforced under the U.S.-led Bretton Woods institutions, the World Bank and the International Monetary Fund (IMF), brought ruinous results to many poor countries. The subsequent decline in credibility of these institutions challenges their continued relevance and opens a space for powerful nations to fashion alternative rules of trade. China is a member of the IMF but …

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

Peter R. Reilly

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement.

Part II will discuss the elements that make up FCPA ‘jurisprudence’ given that so few cases are litigated in court; the history of using DPAs and NPAs …

Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly

Peter R. Reilly

This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.

The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement.

Part II will discuss the elements that make up FCPA ‘jurisprudence’ given that so few cases are litigated in court; the history of using DPAs and NPAs …

Navigating The Doj Fcpa Opinion Procedure: Certainty For Businesses Facing Increased, Indeterminate Anti-Bribery Enforcement, Fahad A. Juneja

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Private Equity And The Fcpa: Deal-Making As Reform Mechanism, Thomas J. Manning

Pepperdine Law Review

No abstract provided.

Income Tax - Deductions For Facilitating Payments To Foreign Government Officials, Birney Bull

Georgia Journal of International & Comparative Law

No abstract provided.

Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root

Veronica Root

No abstract provided.

Petitioning Foreign Governments: The Act Of State And Noerr-Pennington Doctrines, Don R. Sampen

Georgia Journal of International & Comparative Law

No abstract provided.