Excerpted from the July 29, 2020 issue of Global Investigations Review
Among the thousands of recent updates and changes to the Foreign Corrupt Practices Act resource guide, the Department of Justice seems to have left readers wanting more on one particular topic: the definition of “victim.” This question of who or what constitutes a victim in a foreign bribery case is a topic of much discussion among lawyers.
Pierce Atwood litigation partner and former FCPA prosecutor Kathleen Hamann noted that while she was “a little surprised” that victim status in FCPA cases wasn’t addressed in the updated guide, she understands why it would be difficult for the DOJ to provide more guidance given that the matter is “in flux.” She added that even though recent cases have brought attention to the issue, this discussion of who constitutes a victim and how “enforcement actions should address those victims” has been going on “for decades.”
Kate went on to note that applying the Mandatory Victims Restitution Act and the US Sentencing Guidelines in corruption cases “is challenging, both in terms of identifying the victims and quantifying harm. In FCPA cases in particular, there’s the added dimension of ensuring restitution isn’t paid to corrupt actors which naturally starts overlapping with foreign policy challenges.”
The complete article by Clara Hudson can be found in the July 29, 2020 issue of Global Investigations Review