Recently Paul Weiss released “Overview of the Foreign Corrupt Practices Act: A Practical Guide for Businesses” (see here). Nothing noteworthy there as law firms frequently market FCPA services.
Nor are the below snippets from the Paul Weiss guide noteworthy as law firms (and others in FCPA Inc.) frequently use the current aggressive FCPA enforcement environment, the broad interpretations by the enforcement agencies, and the lack of government guidance in marketing efforts.
“Although Congress indicated its intent to exclude certain widespread practices from the scope of the Act, it is often difficult to determine where the lines are to be drawn.”
“In addition to pushing the boundaries of jurisdiction for substantive FCPA charges, U.S. enforcement officials have employed other tools to target international bribery with some link to the United States.”
“U.S. enforcement personnel have interpreted this language [the FCPA's "obtain or retain business" element] broadly to encompass any business purpose, and thereby to apply to payments made to avoid or reduce customs, income or other taxes, to bypass customs, health, or other inspections, or otherwise to change the enforcement or application of laws or regulations.”
“[I]t is not necessarily easy to identify the dividing line between a permitted facilitating payment and a prohibited bribe …”.
“In addition to the severe penalties that can apply to violations, there are very good reasons why issuers and U.S. companies have committed significant resources to FCPA compliance in recent years. The language of most of the relevant FCPA provisions is broadly phrased and broadly interpreted by the DOJ and SEC. Neither agency has issued regulatory or other material that provides “bright lines” or other clear guidance in interpreting the Act, and very few issues of interpretation have been litigated. By and large, business entities are extremely reluctant to litigate FCPA enforcement cases, and virtually all DOJ and SEC enforcement cases against business entities are settled.”
What is noteworthy about the Paul Weiss guide is it authors.
Mark Mendelsohn is listed as the lead author and the author group also includes Walter Ricciardi and Bruce Searby.
Mendelsohn’s Paul Weiss bio page (here) states as follows. “Prior to joining Paul, Weiss, Mr. Mendelsohn served as the deputy chief of the Fraud Section of the Criminal Division of the United States Department of Justice (DOJ), and is internationally acknowledged and respected as the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program. As deputy chief of the Fraud Section from 2005 to 2010, Mr. Mendelsohn was responsible for overseeing all DOJ investigations and prosecutions under the FCPA …”. [...] During his tenure administering the DOJ’s FCPA enforcement program, DOJ brought more than 50 prosecutions against corporations for violations of the FCPA and related offenses, resulting in more than $1.5 billion in criminal penalties. During that same period, DOJ brought approximately 80 prosecutions against individuals.”
Ricciardi’s Paul Weiss bio page (here) states as follows. “Prior to joining Paul, Weiss in June 2008, Mr. Ricciardi was the Deputy Director of the SEC’s Division of Enforcement, where he supervised many of the Commission’s most significant investigations related to financial fraud, FCPA, insider trading and broker-dealer and mutual fund compliance issues.
Searby’s Paul Weiss bio page (here) states as follows. “Prior to joining Paul, Weiss, Mr. Searby served as an assistant United States attorney in the Central District of California as a member of the Public Corruption and Civil Rights Section and the Major Frauds Section. While at the U.S. Attorney’s Office, he worked on several cases involving violations of the Foreign Corrupt Practices Act (“FCPA”). Mr. Searby was co-lead counsel on the first case brought under the FCPA in the entertainment industry, in which both defendants were convicted at a jury trial in late 2009.”