The Champion

September/October 2010 , Page 34 

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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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