This article was reprinted with permission
from FCPA Professor
The U.S. intervenes, I disagree, I agree, and say
what. It's all here in the Friday roundup.
U.S. Intervenes in Wynn-Okada Dispute
Numerous prior posts (see here,
and here for
instance) have highlighted the dispute between Wynn Resorts and its former
board member Kazuo Okada. Earlier this week, Bloomberg reported
as follows. "The U.S. asked to intervene in a lawsuit brought by Wynn
Resorts Ltd., which accused Okada of making improper payments to Philippine
gambling regulators. The Justice Department said in an April 8 filing in state
court in Las Vegas that it doesn't want the civil case to disrupt its criminal
investigation into the same underlying allegations." According to Bloomberg:
"Okada's lawyers have said they would probably oppose the request "in whole or
in part," according to the filing. Wynn Resorts won't oppose its request, the
Justice Department said." For additional coverage, see here
from the Las Vegas Review-Journal.
Earlier this week a reader of the FCPA Blog (see here) posed
the following question. "One thing that has not gotten much
discussion is the possibility that the apparent slowdown in FCPA enforcement
may be due to the spike in declinations."
Putting aside the big-picture and highly
relevant issue of what is a declination (see here as
well as other embedded posts on this issue), when addressing the issue of FCPA
enforcement statistics, it is important to keep in mind (as highlighted in this
prior post) the following.
Just three unique historical events (Iraq Oil for Food,
Bonny Island, Nigeria conduct, and Panalpina-related issues) served as the
foundation for 35% of all corporate FCPA enforcement actions between 2007-2011
and resulted in 55% of settlement amounts in corporate enforcement actions
between 2007-2011. Adding just the 2008 Siemens enforcement action to the
settlement amount calculation, results in just four unique historical events
accounting for 77% of settlement amounts in corporate enforcement actions
Recognizing these events and how they impacted
FCPA enforcement data is important to understanding why FCPA enforcement
has declined in recent years.
Even though FCPA enforcement has declined in recent
years, unique events giving rise to FCPA enforcement actions have remained
relatively constant between 2007 and 2012. In 2007, corporate
FCPA enforcement actions were the result of 15 unique events. In
2008, corporate FCPA enforcement actions were the result of 10 unique
events. In 2009, corporate FCPA enforcement actions were the result
of 11 unique events. In 2010, corporate FCPA enforcement actions
were the result of 14 unique events. In 2011, corporate
FCPA enforcement actions were the result of 16 unique events. In
2012, corporate FCPA enforcement actions were the result of 12 unique events.
Dieter Juedes (who like me is a product of Sheboygan County, Wisconsin)
recently published "Taming
the FCPA Overreach Through an Adequate Procedures Defense" in the William
& Mary Business Law Review. Among other things, the article
"proposes specific statutory language that Congress could use in adopting such
a defense and it establishes precise factors to be promulgated by the DOJ and SEC
for determining whether a firm's procedure would be deemed "adequate."
Given my prior article "Revisiting a
Foreign Corrupt Practices Act Compliance Defense," I agree with the general
thrust of Juedes's article.
I don't quite understand the logic or rationale of this
op-ed piece in the South China Morning Post by Robert Precht (director
of Justice Labs Limited, a Hong Kong think tank).
Precht argues that "the efforts of some
Western countries to enforce their own anti-bribery laws in China are more
likely to produce false accusations and hinder democratic reform than reduce
corruption." He states as follows. "One of the unintended harms of
enforcing the US anti-bribery law in China is that it may actually stifle
efforts to end corruption. US journalists, human rights workers and university
researchers play an important role in shining light on the darker recesses of
Chinese politics. Preventing Americans from making gifts to Chinese to obtain
information useful to promote democratic reform will hinder the disclosure role
the Americans play."
According to Precht, "the solution is simple." He
argues that "the US Congress should amend the law, providing that it will only
be applied in countries that meet certain minimum requirements of democracy and
will not be applied in authoritarian regimes such as China."
A good weekend to all.
Read more articles on the FCPA by Mike
Koehler at FCPA
For more information about LexisNexis
products and solutions connect with us through our corporate site.