What Are the Implications — for Corporations and Executives — of the Increase in FCPA Investigations?

Financial Fraud Law Report
12.01.10
In this article, Barry Pollack and Laura Billings discuss four possible implications of the anticipated surge of FCPA investigations — of both companies and their executives — and the correlative increase in trials and actual jurisprudence. First, as in other areas of criminal law in which the government is required to prove actual knowledge, we are likely to see the government 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 executives 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 the federal false statements statute, the FCPA books and records provision, and even state commercial bribery 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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