The Champion

September 2011 , Page 26 

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You Mean You're Really Going to Try an FCPA Case? A Checklist of Defenses for Practitioners Handling Foreign Corrupt Practices Act Cases

By Timothy P. O'Toole; Andrew T. Wise

For more than 30 years, the Foreign Corrupt Practices Act (FCPA), which prohibits American companies and their employees and agents from paying bribes to foreign officials in order to obtain or retain business, has been a virtual blank slate for litigators. Since its passage in 1977, the Act has engendered only a handful of published decisions. FCPA law thus remains largely untested in the courts. This dearth of case law exists primarily because enforcement authorities have directed their resources toward corporations, which cannot undertake the life-or-death risk inherent in aggressively defending an FCPA case by taking it to trial and through to appeal. 

The focus on corporations has begun to change. Since the beginning of the Obama administration, enforcement actions have often been directed at individuals who, unlike corporations, have greater incentives to defend themselves vigorously. Even with individuals, of course, there are strong incentives for them to plead guilty rather tha

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