After 30 Years of the FCPA, Will Courts Finally Get Into the Act?

The Champion
In this article, Barry Pollack and Laura Billings explore four possible implications of the anticipated surge of litigated FCPA cases, resulting from the increased prosecution of individuals. First, as in other areas of criminal law where the government is required to prove actual knowledge, the government is likely to more routinely rely instead on theories of willful blindness or conscious avoidance in FCPA prosecutions. Second, defendants will have the opportunity to litigate the breadth of DOJ’s discovery obligations in an environment of increasing international cooperation among governmental enforcement agencies. Third, the trend toward prosecuting individuals may, paradoxically, render moot one of the more hotly contested FCPA statutory interpretation questions: who qualifies as a "foreign official" under the FCPA may diminish in significance as the government increasingly relies upon federal false statements statutes, the FCPA books and records provisions, or even state anti-commercial bribery predicate offenses to prosecute alleged international bribery schemes. And fourth, newsworthy FCPA prosecutions of big-name executives coupled with escalating dollar amounts in corporate settlements could raise the profile of anti-bribery law and attract the attention of state and local prosecutors who will seek to get a piece of the action.
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