Making a Difference
In running this website, I sometimes feel like the captain of a small ship on a wide vast ocean. My metrics tell me that many people are reading, but is the content on FCPA Professor making a difference? Many people have told me that it is and I could cite several examples such as the most recent one.
On April 2nd, FCPA Professor published this post about the recent decision from the W.D. of Ark. in the Wal-Mart FCPA-related derivative actions. The post highlighted two errors in the court’s decision.
“In a footnote, Judge Hickey’s order states: “The Foreign Corrupt Practices Act prohibits United States companies from bribing foreign officials to secure improper business advantage.”
This is an inaccurate statement of law.
Rather, the FCPA contains an “obtain or retain business” element that must be proved. Indeed, the DOJ’s position that the FCPA captures payments to “secure an improper business advantage” wholly apart from the “obtain or retain business” element has been specifically rejected by courts. (See here for the prior post).
The inaccurate statement of law in the order is perhaps not surprising given that the Judge referred to the FCPA as the “Federal Corrupt Practices Act.”
I am happy to see that a day later, on April 3rd, the court issued an amended order to “reflect the correction of minor typographical errors.”
The above referenced footnote (and its substance) no longer appear in the decision and reference to the “Federal” Corrupt Practices Act has been removed.
To FCPA Inc.
It happens so often it is difficult to keep track of, but I try my best.
Earlier this week, Morrison & Foerster announced:
“James Koukios, who served in the Fraud Section of the Criminal Division at the U.S. Department of Justice (DOJ), most recently as Senior Deputy Chief, has joined the firm’s Washington, D.C. office as a partner in the Securities Litigation, Enforcement & White-Collar Criminal Defense Practice Group.
Mr. Koukios is the second high-ranking DOJ prosecutor to join MoFo in the past year, following the 2014 arrival of former Fraud Section Deputy Chief Charles Duross, who served as head of the DOJ’s Foreign Corrupt Practices Act (FCPA) Unit. In his most recent position, Mr. Koukios oversaw the FCPA, Health Care Fraud, and Securities and Financial Fraud Units. With the addition of Mr. Koukios, who previously served as an Assistant Chief in the FCPA Unit and tried two of the most significant FCPA cases in the past decade, MoFo is the only law firm in the world with two former FCPA Unit managers.
During his tenure at DOJ, Mr. Koukios worked with domestic and foreign law enforcement authorities around the globe. He tried nearly two dozen jury cases, serving as a lead trial attorney in two landmark FCPA-enforcement trials: Esquenazi and Duperval.”
Not to dissect the MoFo press release too much, but the Duperval case was not an “FCPA-enforcement” trial. Rather, it was a non-FCPA case against the alleged “foreign official” in the Esquenazi case and directly related to the Esquenazi case.
The Wall Street reports on a bribery probe separate and distinct from the ongoing Petrobras probe. According to the article:
“Prosecutors said 74 companies and 24 individuals are under investigation. None have been named publicly and no charges have been filed. But a leading investigator on the case said companies under investigation include Ford Motor Brazil, a unit of Ford Motor Co.; JBS, the world’s largest meatpacker, the Brazilian unit of the Spanish bank Banco Santander SA; and Brazil’s second largest private-sector bank, Bradesco SA.
Brazil’s tax system is among the most onerous and complex in the world. Penalties can be steep. That has fostered an environment where corruption can flourish, experts say.
“Taxes in Brazil are so high and complicated that it is easy for companies to get in trouble with the taxman,” the leading investigator told The Wall Street Journal. The investigator said frequent tax disputes created opportunities for ill-intentioned public servants to profit by helping firms circumvent red tape.”
Speaking of the Petrobras inquiry, the Wall Street Journal goes in-depth here.
A good weekend to all.