The White House having declared a policy of indifference to foreign corrupt practices, Justice officials abruptly scrubbed plans to participate in the American Bar Association's annual Conference on White Collar Crime in Miami.
Glenn Leon, chief of the criminal division’s fraud section; Molly Moeser, head of a money laundering and asset forfeiture unit; David Fuhr, chief of the criminal division’s Foreign Corrupt Practices Act unit; and Michael Granston, a deputy assistant attorney general in the civil division’s commercial litigation branch were all schedulerd to participate.
One explanation for the absence is that the cancellation of US Governemnt purchasing cards and other travel restrictions made the trip to Miami impractical. Bloomberg Law reports some local prosecutors in the Miami federal attorney’s office planned to attend, and Dustin Davis in the DOJ fraud section, remained on the schedule as of Monday afternoon.
Antonia Apps, acting deputy enforcement director at the SEC, and and CFTC enforcement director Brian Young, both career officials, made presentations at the conference.
Two former Cognizant Technology Solutions executives charged over an alleged foreign bribery scheme may get a reprieve, as the newly installed US attorney for New Jersey, John Giordano asked the judge for a six-month extension “to allow sufficient time for my consideration” of the Executive Order. Two weeks earlier, the US Attorney’s office had indicated to the court that it was prepared to proceed with the trial.
Gordon Coburn, the company’s former president, and Steven Schwartz, its former chief legal officer, authorized a $2 million bribe to at least one government official in India to secure permits necessary for the construction of an office campus there. Cognizant agreed to pay $25 million to settle charges that it violated the Foreign Corrupt Practices Act, putting the matter to rest for the company
The FCPA Professor Blog notes The Government’s expansive theory of liability that the FCPA’s anti-bribery provisions are violated by payments to foreign officials outside the context of foreign government procurement (such as to secure a license or permit) has been subjected to judicial scrutiny just four times in the FCPA’s nearly 50 year history.
In their Winter FCPA Review, James Tillen and his colleagues in the Miller & Chevalier FCPA and International Anti-Corruption team note:
"While the E.O. and other policy memoranda have generated sometimes-bombastic headlines, many questions remain as to the practical effects of these changes for companies, especially amidst an international anti-corruption landscape that has evolved substantially beyond a sole focus on FCPA enforcement.
" However, the FCPA is still in effect and there continue to be compelling reasons for companies to take appropriate steps to manage ongoing risks for corruption and related fraud and self-dealing, including the business benefits of strong compliance, the prospect of non-U.S. authorities moving to increase their enforcement activity, and a statute of limitations period for FCPA violations that will run well past the current administration.
"The E.O. does not create any new legal defenses or exceptions for companies or individuals, and new investigations can still be approved by the attorney general (albeit only in exceptional circumstances for the 180 days following the E.O.). Companies should assess the administration's recent actions in the context of a complex international business and enforcement environment. The exact contours of the pause are still in flux, as shown by the DOJ recently providing mixed messages to the court about whether it would like to proceed in the trial of former Cognizant executives currently scheduled to start this month."
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