DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Erin M. Eiselein, a Shareholder in the firm’s Denver, CO office.

It has been a busy few months for the Fraud Section of the Department of Justice (“DOJ”) as the section continues its road show to educate the health care community on its recent Foreign Corrupt Practices Act (“FCPA”) guidance. As has been widely reported, DOJ announced a new policy (which took effect immediately) of applying its FCPA Corporate Enforcement Policy to health care companies. DOJ has focused considerable enforcement resources lately on health care companies’ alleged payment of bribes to foreign officials. Continue reading “DOJ Expands FCPA-Violation Self-Disclosure Incentive to the Health Care Industry”

Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregBy Gregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC, with Thomas J. Krysa, a Shareholder with the firm in its Denver, CO office.

In a much watched Foreign Corrupt Practices Act (FCPA) case that originated in the U.S. District Court for the District of Connecticut, the U.S. Court of Appeals for the Second Circuit recently held in U.S. v Hoskins that a foreign national who is not employed by a U.S. company cannot be guilty of violating the law as an accomplice or co-conspirator. In so ruling, the court directly contradicted a 2012 FCPA guide promulgated jointly by the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ).  A unanimous three-judge panel held that “the government may not expand the extraterritorial reach of the FCPA by recourse to the conspiracy and complicity statutes.”  This decision is significant because it clarifies federal regulators’ and prosecutors’ jurisdiction over nonresident foreign nationals. Continue reading “Second Circuit Contradicts SEC/DOJ Guidance in Limiting Scope of FCPA”

DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions

Featured Expert Contributor, White Collar Crime & Corporate Compliance

Brower_GregGregory A. Brower, a Shareholder with Brownstein Hyatt Farber Schreck, LLP in Las Vegas, NV and Washington, DC.

*Ed. Note: This is Greg’s inaugural commentary as a featured expert contributor. Greg is a member of WLF’s Legal Policy Advisory Board, and has extensive experience in law enforcement as a former United States Attorney and Deputy General Counsel of the FBI. He also served five terms in the Nevada legislature, where he was Chairman of the Senate Judiciary Committee.

Last month, in several speeches delivered in New York City to separate groups of white collar defense lawyers, Deputy Attorney General Rod Rosenstein announced a new U.S. Department of Justice (DOJ) policy concerning the proper coordination of penalties in corporate criminal cases.  This new policy, implemented by way of a new section in the U.S. Attorneys’ Manual (and a tweak to an existing provision), seeks to address the problem of “piling on” of multiple penalties by multiple enforcement entities in the context of corporate resolutions. Continue reading “DOJ Issues New Guidance to Avoid “Piling On” in Corporate Enforcement Actions”

WLF Web Seminar Assesses Criminalization of Food-Safety Regulation



Related Materials:

  • Powerpoint slides used by Mr. Neale available here
  • WLF Legal Opinion Letter authored by David Debold on US v. DeCoster, discussed in seminar, available here

Foreign Sovereign Compulsion, Act of State and Comity: Can They Save You?

Guest Commentary

Charles C. Moore, White & Case LLP

Companies doing business in jurisdictions with managed economies may encounter greater difficulty raising laws and regulations of those jurisdictions as a defense in U.S. antitrust (and other) actions.  On September 6, 2011, a New York federal court denied summary judgment to certain Chinese manufacturers of vitamin C in In re Vitamin C Antitrust Litigation, 06-MD-1738 (BMC) (“Vitamin C”), rejecting the manufacturers’ claims that the Chinese government compelled them to fix the prices of vitamin C or that Act of State or comity principles should apply.  While Judge Cogan’s rather detailed opinion (72 pages) may suggest that the ruling is limited to the specific Chinese regulatory scheme at issue, businesses operating in similar jurisdictions should take note of a few general principles suggested by the ruling: Continue reading “Foreign Sovereign Compulsion, Act of State and Comity: Can They Save You?”

DOJ’s Improved Coordination = More Antitrust + FCPA Investigations

Guest Commentary

Michael Volkov, Mayer Brown LLP

Cross-posted with permission from White Collar Defense and Compliance

Some may wonder why my blog, White Collar Defense and Compliance, regularly reports on the Justice Department’s criminal antitrust record and trends. For white-collar practitioners, the FCPA and criminal antitrust prosecutions regularly lead to opportunities to represent companies and/or officers. Apart from that, there are important reasons to monitor the Justice Department’s criminal antitrust investigations and prosecutions.

First, a criminal antitrust investigation of cartel activity in a specific industry can be a precursor to an FCPA investigation in the same or closely related markets. Second, when a company in an antitrust criminal investigation seeks leniency by cooperating, you can rest assured that all of the officers and employees will be asked about knowledge of potential bribes paid by the company or competitors. Continue reading “DOJ’s Improved Coordination = More Antitrust + FCPA Investigations”

“Tough on Crime” and Fair, Understandable Laws NOT Mutually Exclusive

What if the National Basketball Association (NBA) vaguely defined a three-point shot as, “somewhere more or less around the three-point arc?”  Would the Dallas Mavericks still have defeated the Miami Heat in the finals?

Fortunately, the rule for three pointers is absolute.  Unfortunately, however, the same cannot be said about the language in much of the United States criminal code.  Consider the Armed Career Criminal Act (ACCA) which defines a violent felony as one committed “purposefully, violently, and aggressively.” 

This ambiguous language has confused many – including, recently, Justice Scalia.  Scalia labeled the majority opinion supporting the vague language as a “tutti-frutti opinion”:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent. 

As noted last Thursday in a Legal Pulse post, the threat of imprecise language extends well beyond this particular case.  “The point [Scalia] makes is an important one, especially for those concerned, as WLF is, about the rampant criminalization of business conduct: people “of ordinary intelligence” deserve “fair notice” of a law’s reach.”

Fortunately, it’s not just Justice Scalia who understands the potential hazards of vague laws.  At a House Judiciary Committee Hearing on the Foreign Corrupt Practices Act (FCPA) on June 14, two men – both of who are “tough on crime” – railed against the increasing imprecision of criminal laws.  Former Attorney General Michael Mukasey emphasized the need to “clarify the meaning of a ‘foreign official,’” the need for a “willfulness requirement for corporate criminal liability,” and the general need for greater “clarity and certainly.”  George J. Terwilliger of White & Case LLP added his ideas to “help clarify ambiguity in the statute and its application.”

When the meaning and application of ambiguous statutory terms is left up to prosecutors and regulators, those largely unaccountable officials, in the words of former federal prosecutor Michael Volkov, “become not only enforcers of the law, but also judge and jury.” Mr. Volkov made that, and many other critiques of how the FCPA, at a WLF Web Seminar program today “Is An ‘Effective Compliance Program’ Enough?: Lessons from Foreign Corrupt Practices Act Enforcement Actions and Settlements.” A recording of that live program is available here.

We want Americans to follow the law, but it is fundamentally essential that those laws are well-defined and easily understood.