Excerpted from the April 12, 2022 edition of Law360
According to a Law360 article by Stewart Bishop, a Brooklyn jury recently convicted former Goldman Sachs managing director Roger Ng over a scheme to misappropriate billions of dollars from Malaysian sovereign wealth fund 1MDB. An untested provision of the Foreign Corrupt Practices Act, however, may provide “fertile ground” for a challenge on appeal.
Pierce Atwood white-collar partner Kathleen Hamann, an internationally recognized authority in white-collar enforcement and compliance matters and former FCPA prosecutor, told Law360 that the statute is untested, and just like other parts of the FCPA, the U.S. Department of Justice may have just held one interpretation of the law through settlement after settlement.
Kate stated, "It's only after DOJ has been holding that interpretation of the law, essentially for years, that it actually goes before a court, and a court decides what the FCPA actually says about that."
Kate also said that it isn't unusual for the DOJ to take a very broad reading of the statute only to have it narrowed by a court later. She said the issue presents a number of different ways for both the prosecution and the defense to try to make their respective cases.
"If you interpret it in a way that reads the accounting out of it, one argument is it becomes vague and people are not on notice and that kind of thing. They may go in that direction. There's also congressional intent direction. What did Congress mean when they adopted what are referred to as the accounting provisions?"
The complete article by Stewart Bishop can be found in the April 12, 2022 edition of Law360.