- Police show up to enforce gun confiscation order against Maryland man under new “red flag” law, he brandishes weapon, they shoot him dead [Leah Crawley and Ashley Barnett, Fox Baltimore; Colin Campbell, Baltimore Sun]
- Claim: “The Kavanaugh debacle cost the Democrats the Senate” [Marc Thiessen] If I cheer for Neomi Rao is it going to hurt her confirmation chances? [Jesus Rodriguez, Politico on nomination of OIRA head for Kavanaugh seat on D.C. Circuit]
- “Please conduct yourself accordingly”: Matthew Whitaker letter to man who complained about World Patent Marketing, on whose advisory board Whitaker sat [Mike Masnick, TechDirt]
- Upholding FCPA prison term, Third Circuit rejects businessman’s argument that bribery deal helped pull population out of poverty in remote part of Siberia [Matt Miller, PennLive]
- Sidetracking a decision on the cy pres merits? Supreme Court calls for supplemental briefing on whether named plaintiffs in Frank v. Gaos “have suffered an ‘injury’ sufficient to create standing under the Court’s doctrine” [Ronald Mann/ SCOTUSBlog, Will Baude, earlier here, here, etc.]
- “Fun fact in an opinion today from the Federal Circuit: the Patent Office employs 14 examiners full time solely to examine patent applications filed by a single, prolific inventor.” [Andrew Trask, Gilbert Hyatt v. USPTO]
Compliance Week invited me to write on what’s wrong with the Foreign Corrupt Practices Act. Excerpt:
Scenario: an American city hires an Asian-based bank to float a bond deal. Scandal! Turns out the bank wined and dined the mayor and council and treated them to sports events. After an investigation, the Asian bank agrees to put things right by paying millions of dollars to the government of France.
That’s crazy, right? What does any of this have to do with the government of France? But it’s certainly no crazier than the workings of our own Foreign Corrupt Practices Act, under which European companies have been made to pay penalties of $398 million and $240 million to the U.S. government over bribes paid to officials in Nigeria and Iran, respectively….
FCPA oversteps the proper bounds of federal lawmaking in at least four ways: it is extraterritorial, vicarious, punitive, and vague….
The business community in Washington has been pressing for legislation to clarify the 1977 law’s requirements, but I suggest we go further and re-examine things more fundamentally, including (beyond the problems above) the law’s break from principles of mutualism and comity in foreign relations and its role in scaring capable bidders away from infrastructure projects that could help lift some rural populations out of desperate poverty. “Making us feel better isn’t a good enough reason for a law.”
Full text here, and earlier FCPA coverage here, here, here, here, and here [cross-posted and expanded from Cato at Liberty] A few more links: Mike Koehler/FCPA Professor on the Total case as “cash cow”; Manhattan Institute 2013 report and more coverage on now-dormant Point of Law; Brian Hoffman, Holland & Hart; Foley & Lardner.
The Department of Justice has announced a new corporate enforcement policy for the Foreign Corrupt Practices Act; it doesn’t go nearly as far as compliance lawyers and critics of the FCPA might have wanted, though. Commentary by Mike Koehler (“FCPA Professor”) here, here, and here (FAQ). More: Federalist Society podcast discussion with John C. Richter and George J. Terwilliger.
- What’s actually in the new House-passed bill revamping Dodd-Frank? And what’s likely to happen to it in the Senate? [David Henderson, EconLib; Benjamin Parker, Weekly Standard; Stephen Bainbridge]
- Supreme Court, 9-0, rebuffs SEC: yes, disgorgement is a penalty and statute of limitations applies to it [Theresa Gabaldon/SCOTUSBlog (statutes of limitations “vital to the welfare of society,” per Sotomayor), Bainbridge and more, Thaya Brook Knight and Ilya Shapiro/Cato]
- Allan Meltzer, R.I.P. [James Dorn, Gerald O’Driscoll, Ian Vásquez, Cato]
- “The Foreign Corrupt Practices Act and the New Trump Administration: Your Top Ten Questions Answered” [Foley & Lardner]
- June 15, mark your calendar: “Financial Crisis and Reform: Have We Done Enough to Fix the Government-Sponsored Entities?” with John Allison, Susan Wharton Gates, R. Christopher Whalen, Landon Parsons, and Ike Brannon, Cato event streaming live or in person in Washington, D.C.;
- Why, yes: “Is It Time to Repeal FATCA?” [Veronique de Rugy, more]
Jay Clayton of Sullivan & Cromwell, president-elect Donald Trump’s choice to head the Securities and Exchange Commission, has not taken a high-profile role in policy debates but according to MarketWatch was involved in preparing a 2011 report for the New York City Bar critical of enforcement of the Foreign Corrupt Practices Act (FCPA). That’s a point in his favor, I argue at Cato, since the case against zealous FCPA enforcement is well established. Related earlier, and Texas Public Policy Foundation 2014. More: Andrew Ramonas, BNA Bloomberg.
- Lawyers try contortions to fit Sandy Hook gun suit into “negligent entrustment” mold [Daniel Fisher, more, earlier]
- Judge Gonzalo Curiel, lately in news, tosses class action claiming MillerCoors misrepresented Blue Moon beer as “craft” [Reuters]
- Orlando murderer’s father: The nightclub’s sort of at fault here too, you know [AllahPundit]
- “The long, strange saga of Harry Reid and the exercise band” [Amber Phillips, Washington Post/San Luis Obispo Tribune]
- “Prominent Toronto lawyer ordered to pay $114K for role in pursuing ‘unreasonable’ lawsuits” [National Post]
- That fabled transparency: U.S. Dept. of Justice doesn’t seem to welcome outside scrutiny of its FCPA enforcement [Mike Koehler, FCPA Professor]
Remember that big New York Times exposé that accused Wal-Mart of massive Foreign Corrupt Practices Act (FCPA)/bribery offenses during its expansion in Mexico? Oops:
A high-profile federal probe into allegations of widespread corruption at Wal-Mart Stores Inc.’s operations in Mexico has found little in the way of major offenses, and is likely to result in a much smaller case than investigators first expected, according to people familiar with the probe.
“The Securities and Exchange Commission today announced that BNY Mellon has agreed to pay $14.8 million to settle charges that it violated the Foreign Corrupt Practices Act (FCPA) by providing valuable student internships to family members of foreign government officials affiliated with a Middle Eastern sovereign wealth fund.” [SEC press release, WSJ] The SEC said at least three offspring from influential families lacked “the requisite academic or professional credentials” for the internships and proved to be “less than exemplary employees.” [Business Insider] While publicly shaming the bank, the commission did not see fit to name the foreign country involved. Similar probes on intern hiring have been aimed at other big financial institutions including J.P. Morgan, accused of hiring the children of Chinese officials [Reuters]
- In banking and FCPA cases, targets of DOJ prosecution are disproportionately firms domiciled abroad, and other countries do notice that [Jesse Eisinger, NYT “DealBook”]
- “Los Angeles’ Confused Suit against Mortgage Lenders” [Mark Calabria, Cato] Providence also using disparate impact suits in hopes of making banks pay for its housing failures [Funnell]
- Podcast discussion on Operation Chokepoint with Charles J. Cooper, Iain Murray, and Todd J. Zywicki [Federalist Society, earlier]
- New round of suits against banks based on ATMs’ imperfect wheelchair accessibility [ABA Journal, earlier here]
- Walgreen’s could save billions in taxes if it moved to Switzerland from U.S. Whose fault if anyone’s is that? [Tax Foundation]
- “Left unmentioned: how fed regulation and trial lawyers deter banks from protecting themselves with overdraft fees.” [@tedfrank on NYT report about banks’ use of databases to turn down business from persons with records of overdrawing accounts, a practice that now itself is being targeted for regulation]
- Scheme to seize mortgages through eminent domain stalling as cities decline to come on board [Kevin Funnell]