You searched for:

fcpa

The implications are mind-boggling [Houston Chronicle/Connecticut Post via NACDL via Americans for Forfeiture Reform, earlier] On paper, NSA is supposed to turn over spy-collected data only if evidence of serious unrelated crime turns up while investigating terrorist threats or other specified matters. However, as Reuters shows in an important new investigation, in drug investigations (and probably other types as well) “law enforcement agents have been directed to conceal how such investigations truly begin — not only from defense lawyers but also sometimes from prosecutors and judges” Thus the common little white lie about how such-and-such was discovered “during a routine traffic stop,” when in fact the traffic stop was intended to intercept something or someone known by previous investigation to be aboard the vehicle. With the origins of investigation routinely “phonied up” in this way, however, it becomes virtually impossible to know how many handoffs of spy information fall into gray areas beyond the clear intent of the authorizing law. [Julian Sanchez, Cato] Our coverage of the Foreign Corrupt Practices Act is here; earlier on surveillance here.

{ 1 comment }

FCPA: a success

by Walter Olson on May 3, 2012

At remedying the culture of bribery that afflicts so much of government in Mexico and other countries, the U.S.’s Foreign Corrupt Practices Act has been an utter and rather absurd failure. But the law has succeeded in its most important objective: making us feel good about ourselves [Steve Chapman, syndicated/Chicago Tribune]

More: Alison Frankel on the Sarbanes-Oxley angle; Catherine Dunn, Corporate Counsel, on the Mexican side of the Wal-Mart scandal.

  • Notwithstanding the tone of much coverage, companies are not legally required to disclose past FCPA violations to the government when they emerge: “It’s my understanding from in-house counsel that those who [voluntarily] disclose are in the distinct minority,” says one observer. Also, Prof. Koehler notes that even if Wal-Mart successfully defends the Mexican outlays as lawful “facilitating payments,” the company could still be accused of violating FCPA’s “books and records” and internal control provisions as well as Sarbanes-Oxley. [Sue Reisinger, Corporate Counsel]
  • Coyote recalls the eyes-averted maneuvers with which his former employer put itself in a posture of formal FCPA compliance when operating in corrupt countries;
  • Must-read Scott Greenfield post: “The Foreign Corrupt Practices Act is the corporate version of blue laws, a reflection of American idealism born of our Puritanical origins, our Pollyanna-ish denial of how the sausage of business is made, our jingoistic belief that we are so integral to the economic functioning of the world that we can dictate a cultural and moral code for everyone, and they can either comply with our great American will or suck eggs. It’s a fantasy of self-righteousness, and even Wal-Mart got caught in the reality that the business of business is business, and not puffy-chested Americans can bully Mexicans into succumbing to our moralistic ways.” Also suggests what Wal-Mart might say in response (at least if Wal-Mart were a character in an Ayn Rand novel) and notes “efforts to take this mutt of a law and attempt to reform it, at least to the extent that it not make American multinational corporations chose between being criminals or uncompetitive.”
  • Speaking of which, some reforms sought by business: “Bringing Transparency to the Foreign Corrupt Practices Act” [Michael Mukasey and James Dunlop, Federalist Society "Engage"]
  • Jeffrey Miron: prosecute Wal-Mart but repeal FCPA [CNN/Cato]
  • While agreeing that the FCPA we have at present is pretty bad, Prof. Bainbridge thinks a case can be made for such a law in principle;
  • Something to get Capitol Hill Democrats on board for reform? FCPA might menace Hollywood on China dealings [WSJ "Corruption Currents"]

Earlier here, here, here, and (at Cato) here.

{ 3 comments }

Wal-Mart and FCPA

by Walter Olson on April 23, 2012

Wal-Mart’s expansion into Mexico, one of the great American business success stories of recent years, may also have led the giant retailer into extensive violations of the Foreign Corrupt Practices Act — in particular, if a New York Times investigation is to be believed, through efforts by U.S. management to sweep under the rug strong evidence that rogue management in Mexico had paid millions of dollars in bribes to facilitate the chain’s expansion. [NYT, AW, Business Insider] Last fall I described the law as “a feel-good piece of overcriminalization” that Congress should never have passed; more on FCPA here.

{ 1 comment }

The financial press has been speculating that the police-payoff scandal that has engulfed some of Rupert Murdoch’s British properties will provide fodder for a U.S. prosecution under the Foreign Corrupt Practices Act. Alison Frankel, Reuters: “In an age of limited resources, I’m not convinced that our government should be bending and twisting the FCPA to make a case against News Corp, however sexy and high-profile that case would be. Remember, just about every FCPA case we’ve seen in the recent flurry of prosecutions has involved alleged bribes of officials in countries with inadequate anti-corruption enforcement systems.” More: Bainbridge.

{ 3 comments }

More FCPA acquittals

by Walter Olson on February 2, 2012

Defenders of the government’s aggressive prosecutions under the Foreign Corrupt Practices Act are finding more and more to be defensive about. The latest in the string of setbacks for the Department of Justice came Monday, when a jury acquitted two defendants in the Justice Department’s 2009 Gabon “sting” operation and the case against three others ended in a mistrial. Alison Frankel: “So far, the Justice Department has not managed to convict a single Gabon sting defendant who contested its charges.” [WaPo, WSJ blog and related, earlier]

More: “A Guest Post From The Africa Sting Jury Foreman” [FCPA Professor]

For the third time in weeks, a federal judge has thrown out in whole or part a prosecution under the Foreign Corrupt Practices Act (FCPA), this year’s booming subject of white-collar law enforcement. What’s more, judges in more than one of the cases have criticized the tactics of the U.S. Department of Justice in truly scathing terms, just as they have criticized DoJ tactics in environmental and other white-collar prosecutions over the past year. Isn’t it time — I ask at Cato at Liberty — for Congress to investigate? [earlier; related, Nathan Vardi/Forbes] (& welcome Instapundit, Damon Root/Reason, Memeorandum, Samuel Rubinfeld/WSJ “Corruption Currents”, Radley Balko readers).

{ 2 comments }

I’ve got a new post at Cato at Liberty summarizing the case for rolling back, not just clarifying, the vague yet draconian Foreign Corrupt Practices Act (& Point of Law, @RameshPonnuru). More: FCPA Professor. Related: Open Society Foundation publishes lawprofs’ defense of FCPA. How convincing is it? [FCPA Prof]

More from Scott Greenfield, including some comments on the FCPA-entrenching tendency of the DoJ-white collar bar partnership, and this from commenter “Libertarian Advocate”: “Seen through a different prism, the FCPA is a loud and unambiguous statement by the federal government that it reserves unto itself the exclusive right to corrupt foreign entities and officials.” And FCPA Professor isn’t on board with our criticism. Further: PoL on specific reform proposals.

{ 7 comments }

February 3 roundup

by Walter Olson on February 3, 2014

  • “Class counsel in Facebook ‘Sponsored Stories’ case seeks to impose $32,000 appeal bond on class-action objectors” [Public Citizen, Center for Class Action Fairness]
  • The best piece on bar fight litigation I’ve ever read [Burt Likko, Ordinary Gentlemen]
  • Casino mogul Adelson campaigns to suppress online gaming; is your state attorney general among those who’ve signed on? [PPA, The Hill]
  • Foreign Corrupt Practices Act (FCPA): “Anyone who values the rule of law should be alarmed by the ADM enforcement action.” [Mike Koehler]
  • New FMCSA rules on length of workweek make life difficult for long-haul truckers [Betsy Morris, WSJ via Lee Habeeb and Mike Leven, National Review and more]
  • “It takes a remarkable amount of nerve to cobble together publicly available facts, claim you’ve uncovered a fraud on the government, and file a lawsuit from which you could earn substantial financial benefits.” [Richard Samp, WLF] Whistleblower-law lobby tries to get its business model established in West Virginia [W.V. Record]
  • Pittsburgh readers, hope to see you tomorrow at Duquesne [law school Federalist Society]

Should prosecutors hype their charges for publicity value? U.S. District Court Judge Richard Sullivan (S.D.N.Y.) is scathing about a sensationally worded press release put out by the office of Manhattan U.S. Attorney Preet Bharara on bringing corruption charges against two Gotham politicos. The alternative presumably would be to save the colorful language in the name of the public until actually securing a conviction. And by contrast, Mike Koehler quotes comments by Judge Richard Leon on dismissing Africa Sting FCPA cases:

This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement. Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case. Funny isn’t it what sells newspapers.

[FCPA Professor] More from Scott Greenfield:

According to the Law360 article, “fellow panel member and deputy U.S. Attorney for the Southern District of New York Richard B. Zabel defended the practice, saying under U.S. Department of Justice guidance, part of the reason to have a press conference or release is to explain to the public what is going on. ‘The purpose of a quote is to be quoted and draw attention to the case,’ Zabel said. “Laypeople can’t read a complaint.”

Is that not a great explanation or what?

{ 1 comment }

August 2 roundup

by Walter Olson on August 2, 2013

{ 4 comments }

  • Arkansas: “‘Corruption of Blood’ Amendment Withdrawn After House Supporter Is Reminded What Century It Is” [Above the Law]
  • George Zimmerman-Trayvon Martin case heads for trial [TalkLeft, Doug Mataconis, and Richard Hornsby via Megan McArdle on evidentiary standards, earlier]
  • Is New Hampshire citizens’ group harassing town parking meter enforcers, or monitoring their work? [Union Leader, ABA Journal, Reason]
  • New York politicos quarrel over Hank Greenberg suit, overbroad Martin Act is to blame [Bainbridge]
  • Enforcement grabs higher-ups in Ralph Lauren Argentine customs bribery case [FCPA Professor, earlier]
  • Who stole the tarts? “Mom has son arrested for stealing Pop-Tarts” [Lowering the Bar; Charlotte, N.C.] Tip from Georgia cops: avoid situations where you might have to cling to hood of moving car [same]
  • “Omaha officers told: Don’t interfere with citizens’ right to record police activity” [Omaha World-Herald via @radleybalko ("Good work, Omaha.")]

{ 1 comment }

On Ralph Lauren’s agreement with prosecutors to settle charges under the Foreign Corrupt Practices Act that its agents improperly bribed officials in Argentina to allow goods to move through trade channels: “Disgorge is a curious description. The $593,000 is the amount they paid out in bribes, not the amount they took in. Disgorge usually refers to the fruits of crime, but instead refers here to the perverse perspective of our government in keeping American corporations pure as the driven snow while minor warlords elsewhere demand their piece of the pie. Whether it’s money in or out, gained or lost, or even neither existing nor realized, it’s all money the government demands be disgorged.” [Scott Greenfield] More on the case: Lawrence Cunningham, FCPA Professor.

{ 1 comment }

  • “Once your life is inside a federal investigation, there is no space outside of it.” [Quinn Norton, The Atlantic]
  • “Cops Detain 6-year-old for Walking Around Neighborhood (And It Gets Worse)” [Free-Range Kids] “Stop Criminalizing Parents who Let Their Kids Wait in the Car” [same]
  • Time to rethink the continued erosion of statutes of limitations [Joel Cohen, Law.com; our post the other day on Gabelli v. SEC]
  • “Are big-bank prosecutions following in the troubled footsteps of FCPA enforcement?” [Isaac Gorodetski, PoL]
  • The “‘professional’ press approach to the criminal justice system serves police and prosecutors very well. They favor reporters who hew to it.” [Ken at Popehat]
  • Scott Greenfield dissents from some common prescriptions on overcriminalization [Simple Justice]
  • Anti-catnip educational video might be a parody [YouTube via Radley Balko]
  • “Too Many Restrictions on Sex Offenders, or Too Few?” [NYT "Room for Debate"]
  • Kyle Graham on overcharging [Non Curat Lex] “The Policeman’s Legal Digest / A Walk Through the Penal Laws of New York (1934)” [Graham, ConcurOp]
  • “D.C. Council Proposes Pretty Decent Asset Forfeiture Reform” [John Ross, Reason] And the Institute for Justice reports on forfeiture controversies in Minnesota and Georgia.
  • Does prison privatization entrench a pro-incarceration lobby? [Sasha Volokh, more]

December 26 roundup

by Walter Olson on December 26, 2012

  • L.A. County assessor, though in jail, will keep drawing $197K salary plus raise [LAT]
  • IRS lowers the regulatory boom on tax preparers [Institute for Justice video, auto-plays]
  • On Wal-Mart Mexico bribery, NYT has a bit of a blind eye of its own [Stoll; earlier here, here, etc.]
  • Another painful CPSIA regulation: CPSC on testing “representative samples” [Nancy Nord]
  • “Popcorn lung” couple “won a $20 million judgment. Now, they’re broke.” [ABC]
  • From Todd Zywicki: Libertarianism, Law and Economics, and the Common Law [SSRN via Bainbridge]
  • If the courts disapprove of throttling internet speeds, what do they think of throttling class action claims redemption rates? [Ted Frank]

International law roundup

by Walter Olson on December 13, 2012

  • U.N. children’s-rights treaty oversight committee seeks ban on foundling baby boxes [Global Post, Telegraph, Vancouver Province]
  • BoJo has mojo: as sentiment burgeons in UK to quit European Union in whole or part, London Mayor Boris Johnson is listening [Reason]
  • History of Chevron Lago Agrio litigation to date [Seeking Alpha, earlier]
  • In Dubai talks, Western nations putting up stouter resistance to proposed International Telecommunications Union takeover of internet governance [Chicago Tribune, earlier here, etc.]
  • Obama backs global arms trade treaty, Second Amendment groups deeply suspicious [David Kopel, Zachary Snider/TheDC, earlier, Ryan Scoville/Prawfs with contrary view)]
  • 130-page resource guide to the Foreign Corrupt Practices Act [DoJ/SEC, earlier]
  • “The immensely complex and burdensome conflict minerals disclosure debacle” [Bainbridge, earlier here, etc.]

International law roundup

by Walter Olson on October 19, 2012

  • Pregaming U.S. v. Bond, case where SCOTUS could revisit Missouri v. Holland treaty-power doctrine [Duncan Hollis, OJ, earlier here, etc.]
  • Military drones and international law: for professor-turned-State-official Koh, the dish is crow [Ku/OJ]
  • “Another UN Push for Global Taxation” [Dan Mitchell, Cato at Liberty]
  • “Free speech is a gift given to us in 1948 by U.N. officials? Who knew?” [Mark Steyn, NRO]
  • Lago Agrio, Ecuador saga: “Chevron claims Patton Boggs tried to cover up a fraud” [Roger Parloff, Fortune]
  • New Kenneth Anderson book, “Living with the U.N.” [Hoover Institute Press]
  • FCPA: “Foreign Firms Most Affected by a U.S. Law Barring Bribes” [New York Times]

{ 2 comments }

August 23 roundup

by Walter Olson on August 23, 2012

  • Cross-examination could be awkward: “Top Nevada Court Says Attorney Son Can Represent Dad in Divorce From Mom” [ABA Journal]
  • “Phoenix Woman Ordered to Not Give Out Water in 112 Degree Heat Because She Lacked a Permit” [Doherty, Reason]
  • Admitting no guilt, Yale capitulates to feds’ Title IX probe, promises crackdown on sexual “climate” [YAM, earlier here, here, etc.]
  • Citing “egregious” ethics lapse, judge denies McGuireWoods fees in BarBri antitrust case [NLJ]
  • Foreign Corrupt Practices Act probe of retailers? [Reuters, FCPA Professor] FCPA piggyback shareholder suits falter [D&O Diary]
  • Obama has postponed a slew of new regulations until after November, and they’re a costly lot [Rob Portman, WSJ]
  • Fifth Circuit rejects challenge to sentencing in Paul Minor case [YallPolitics, background]