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After 30 Years of the FCPA, Will Courts Finally Get Into the Act?
By Barry J. Pollack, Laura Billings
The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 to make it a
criminal offense for a corporation or individual to pay a bribe to a
foreign official to obtain or maintain business opportunities.1
In the more than 30 years since the statute’s enactment, FCPA practice
has developed into something of a spectator sport. Most targets have
historically been companies that chose to settle pre-indictment rather
than risk the potential downside of litigation. Accordingly, while
scores of deferred prosecution agreements (DPAs), nonprosecution
agreements (NPAs), and plea agreements have been reported, only a
handful of FCPA cases have actually been litigated. This has provided
the Department of Justice (DOJ) and the Securities and Exchange
Commission (SEC) wide latitude to apply their interpretation of the
FCPA. There has been precious little judicial review and almost no case
law defining the statute’s actual scope.
Lately, however, individuals, primarily
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