By Matthew Richardson

DOJ Headquarters, Washington D.C.

The average person has an instinctive understanding of the fact that when an act of corruption occurs, some individual somewhere, an actual human being, must be responsible. If a company pays bribes to get contracts, or submits false documents and an official looks the other way, or does shoddy work and is never held to account, we recognize that there must have been somebody, somewhere, who was aware or should have been aware of the misconduct and did the wrong thing. This is part of why so many continue to be upset that the financial institutions that helped bring about the 2009 financial crisis are widely recognized to have behaved improperly, but individuals were never really held to account.

It’s in this context that so many people concerned about corruption in US international commercial transactions have expressed such interest in the Yates Memo, so called because of Deputy Attorney General Sally Yates’ authorship. The Yates Memo is an example of messaging by the Department of Justice, broadcasting for all intents and purposes, that they get it – it’s not good enough to fine large institutions and publicize evidence of institutional misconduct. No, the Yates Memo is an effort by the DOJ to put large multinational corporations and the FCPA defense bar on notice that the DOJ wants to start coming after you, and they want to put an individual’s name next to a fined corporation and say “we got the one who did it!”

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February 22, 2016

By Kelley Chittenden

The United States House of Representatives passed the Judicial Redress Act (the Act) on October 20, 2015, which proposes to allow non-U.S. citizens the right to bring civil actions against United States agencies under the Privacy Act of 1974. Under the Act, the Department of Justice (DOJ) is authorized to designate foreign countries or economic integration organizations whose citizens may challenge unlawful disclosures of records transferred from foreign countries to the United States. The DOJ designations are exempt from judicial or administrative review, and the U.S. District Court for the District of Columbia is granted exclusive jurisdiction over claims. The following Reed Smith Client Alert analyzes the effectiveness of the Act here:

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November 25, 2015

By Matthew Richardson

DOJ has engaged a “compliance counsel” to provide insight and guidance to prosecutors when assessing the compliance programs of companies that are, or have been, under investigation. Keen observers are aware that DOJ has been prosecuting actors for years without such guidance. Those already opinionated on the subject will find all the confirmation they could want for the allegation that DOJ never really understood compliance programs to begin with, though advocates will surely maintain that DOJ’s existing competence on the subject will only become that much greater.

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November 25, 2015

By Alexander Diamond

In a proceeding related to the Department of Justice’s prosecution of Alstom, a French-based energy company that paid 722 million dollars worth of fines after accusations of corrupt activity worldwide, the DOJ pursued charges against Lawrence Hoskins, a British citizen working with the company in France. Although Hoskins had never lived in the United States and was not accused of furthering any corrupt scheme within United States territory, the DOJ argued that personal jurisdiction existed under accomplice liability theory, as explained in the DOJ’s FCPA guidance policy since 2012. However, the U.S. District Court of Connecticut read the FCPA as prohibiting charges against foreign nationals as Congress chose not to include them within the definition of “domestic concerns” subject to liability (for individuals, the definition entails only citizens, nationals and residents). Although higher courts have not yet reached this issue, the scant case law defining the scope of the FCPA means this ruling could affect DOJ prosecution of foreign citizens for years to come.

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September 15, 2015