DOJ and SEC Release FCPA Guide

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The U.S. Department of Justice and the U.S. Securities and Exchange Commission today released A Resource Guide to the U.S. Foreign Corrupt Practices Act. The 120-page Guide provides a detailed analysis of the U.S. Foreign Corrupt Practices Act (FCPA) and closely examines the DOJ and SEC’s approach to FCPA enforcement.

The Justice Department, in announcing the release, said,

The Guide provides helpful information to enterprises of all sizes – from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world.  The Guide addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions; the definition of a “foreign official”; what constitute proper and improper gifts, travel and entertainment expenses; facilitating payments; how successor liability applies in the mergers and acquisitions context; the hallmarks of an effective corporate compliance program; and the different types of civil and criminal resolutions available in the FCPA context.  On these and other topics, the Guide takes a multi-faceted approach toward setting forth the statute’s requirements and providing insights into DOJ and SEC’s enforcement practices.  It uses hypotheticals, examples of enforcement actions and matters DOJ and SEC have declined to pursue, and summaries of applicable case law and DOJ opinion releases.

The Guide is available to the public free of charge online at www.justice.gov/criminal/fraud/fcpa and at www.sec.gov/spotlight/fcpa.shtml.

Marshall Jarrett Reports on the State of the Department

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At NAFUSA’s annual conference in Atlanta in October, H. Marshall Jarrett, the director of the Executive Office for United States Attorneys, gave the State of the Department address. Jarrett told the conference that civil cases were up  10% in fiscal year 2012 but criminal cases were down 8.4% from the all time high in 2011. He said it was not a surprise as staffing was down 850 employees and constituted a return to 2008 levels. A hiring freeze remains in effect, with federal pay raises frozen for the past two years.

Jarrett mentioned a bright note in that collections are expected to be $13 billion in fiscal year 2012 compared to the Department’s appropriated budget of just under $2 billion for the year.

 

Susan Brooks Elected to Congress

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NAFUSA member Susan W. Brooks, former United States Attorney for the Southern District of Indiana, was elected on Tuesday to serve as Indiana’s 5th District Congresswoman. Brooks, who attended the Atlanta NAFUSA conference and was supported by many of her former colleagues, said on her website,

“I am so proud to represent the 5th     Congressional District. I’m ready to get to work. Thank you everyone!”

Peter Vaira Publishes Article on Brady Sentencing Issue

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NAFUSA member Peter Vaira, former United States Attorney for the Eastern District of Pennsylvania and former attorney in charge of the Chicago Strike Force on Organized Crime, has published an article in the summer/fall issue of the ABA White Collar Crime Committee Newsletter entitled “Brady at Sentencing in Federal Court, a Neglected Practice”.

As Vaira points out, “The obligation of the prosecutor to search for and turn over Brady material extends to the sentencing process.”

Vaira currently is a partner at Vaira & Riley in Philadelphia.

George Terwilliger Joins Morgan Lewis

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On October 26, 2012, Morgan Lewis announced that NAFUSA member George J. Terwilliger III, along with three other partners and two associaties, will join the firm’s litigation practice as a partner resident in Washington, DC, effective November 1. Terwilliger had been a senior partner at White & Case and the former head of its Global White Collar Practice Group.

Terwilliger was appointed by President Reagan to serve as the United States Attorney for the District of Vermont, 1988-2003. He  served as deputy attorney general and as acting attorney general in the George H.W. Bush Administration. He has been recognized by the National Law Journal as one of the 100 Most Inflential Lawyers in America. He has represented energy, financial services, telecommunication, healthcare, and industrial companies in government investigations and in civil and criminal litigation.  He has tried numerous cases, and has conducted corporate internal investigations and legal compliance reviews, including for boards and board committees, involving work in more than sixty countries in all regions of the world. He served as special outside counsel for a Senate committee investigation, counsel to an executive commission, and advisor to government officials involved in enforcement and other proceedings involving political affairs.

Terwilliger is a graduate of Antioch School of Law.

Atlanta Photos Posted

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The photos from the Atlanta conference are now available. Some examples follow:

Atlanta Planning Committee: Joe Whitley, Bob Barr, Kent Alexander and Rick Deane

Panel on Internal Investigations: Dan Webb, Kevin O’Connor, Brain Loughman, Jay Stephens, Lanny Breuer, Sharon Zealey and David Remnitz

Panel on immigration: Julie Myers Wood, Nina Perales, Ali Mayorkas, Luther Strange, Chief John King and Charlie Savage

NAFUSA Board and Officers

 

 

NAAUSA Seeks To Have AUSA Suspensions Reversed

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In the aftermath of the Senator Ted Stevens trial, two assistant U.S. attorneys from the Alaska U.S. Attorney Office, Joseph W. Bottini (represented by NAFUSA board member Ken Wainstein) and James A. Goeke were handed 40-day and 15-day suspensions, respectively,  by the Department of Justice.

On October 16, 2012, the National Association of Assistant United States Attorneys (NAAUSA) filed a amicus brief before the Merit Systems Protection Board urging that the suspensions be reversed.

NAAUSA is a national association representing the interests of the 5,600 AUSAs employed by the Department of Justice. In its press release accompanying the filing of the amicus brief, it stated:

While acknowledging that unwillful mistakes had occurred in the government’s performance of its discovery responsibilities, NAAUSA asserted that the Justice Department, in taking disciplinary action upon Bottini and Goeke, had “failed to appropriately acknowledge the collective responsibility of the entire trial team and the exceptional circumstances that led to the prosecution’s discovery-related errors.”

Atlanta Conference Big Success

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Rick Deane and his Atlanta based committee of Kent Alexander, Bob Barr and Joe Whitley succeeded in hosting one of the best NAFUSA conferences ever held. The opening day set the tone when over 40 golfers enjoyed the prestigious East Lake Golf Club, home two weeks earlier to the PGA tour. The rest of the conference attendees joined the golfers in the evening for the opening cocktail reception, hosted by Greenberg Traurig. The crowd was welcomed to Atlanta by Former Mayor Shirley Franklin.

On Friday morning, the CLE program began with welcomes from the Georgia Attorney General Olens and current Georgia U.S. Attorneys, Edward J. Tarver and Michael J. Moore. Deputy Solicitor General Michael R. Dreeben gave a presentation on the Supreme Court Term, 2011-2012, describing many of the significant cases of the term which he had personally argued. The Friday program closed with a panel sponsored by Ernst & Young on Corporate Compliance- Investigations, Diligence and Analytics and moderated by Jay Stephens. The panelists were Assistant AG Lanny Breuer; NAFUSA members Dan Webb, Kevin O’Connor and Sharon Zealey; and Brian Loughman and David Remick from Ernst & Young.

The Friday luncheon was held at The Carter Center. Although Former President Jimmy Carter was unable to join us, he did send a personal letter in which he said:

I regret my schedule did not permit me to be in Atlanta this week to be with you in person and visit with some of my former associates. I commend you all for your service to our nation and hope that your meetings are productive.

AGAC chair Paul Fishman spoke at the Carter luncheon with his News from the Field and the AGAC.

On Friday evening, several class reunions were held: the Reagan-Bush I alumni, the Bush II group, the Clinton alumni and the Carter alums.

Saturday’s CLE began with Marshall Jarrett, Director of EOUSA, describing the State of the Department. The J. Michael Bradford Award was presented to Reid Schar, ND of Illinois, who gave a stimulating presentation on his handling of the Blagojevich case. Rory K. Little, Professor of Law at U.C. Hastings College of Law gave the Ethics Presentation. The program concluded with a panel discussion on Immigration Issues, moderated by Charlie Savage of The New York Times. The panel consisted of Alejandro N. Mayorkas, DHS, Nina Perales, MALDEF, Alabama AG Luther Strange, Chief John King, City of Doraville and former ICE director Julie Myers Wood.

The conference concluded with the Saturday banquet and business meeting. The election of Jay Stephens and the other officers and directors is described elsewhere as is the unforgettable keynote address by Mike Cody. Rick Deane was honored for his outstanding year as president of NAFUSA and his organization of the conference. Rick was surprised by a celebration of his birthday, including a cake and 60 purple balloons.

The conferences would not be possible without the support of the sponsors. This year sponors contributed $78,000 to the success of the Atlanta meeting. A full list of the sponors can be found on the right side of the home page of the NAFUSA website. By clicking on the sponsor logo you can visit their website.

Next year Washington, DC.

 

Pat Fitzgerald Joins Skadden’s Chicago Office

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One of NAFUSA’s newest members, Pat Fitzgerald, who resigned as the U.S. Attorney for the Northern District of Illinois earlier in the year, has joined Skadden, Arps, Slate, Meagher & Flom LLP. Skadden issued the following press release:

CHICAGO – October 22, 2012 – Skadden, Arps, Slate, Meagher & Flom LLP announced today that Patrick J. Fitzgerald, former U.S. Attorney for the Northern District of Illinois, is joining the firm, effective October 29. He will be practicing out of Skadden’s Chicago office. Among other things, Mr. Fitzgerald will focus on internal corporate investigations as well as civil litigation and arbitration.

 

In 2001, Mr. Fitzgerald was appointed by President George W. Bush as U.S. Attorney in the Northern District of Illinois. In this capacity, he led numerous high-profile investigations and prosecutions, including the convictions on corruption charges of two successive governors of Illinois — George Ryan and Rod Blagojevich — and the fraud conviction of media figure Conrad Black. As a special counsel, Mr. Fitzgerald was selected to lead the investigation of leaks in the Valerie Plame matter and tried the case of United States v. Lewis “Scooter” Libby. During his tenure, the U.S. Attorney’s office prosecuted significant fraud, civil rights, organized crime, narcotics and national security cases. Mr. Fitzgerald also was involved in a number of nationwide initiatives, including the President’s Corporate Fraud Task Force and the Attorney General’s Advisory Committee.

 

Prior to his 2001 appointment, Mr. Fitzgerald spent 13 years as an Assistant U.S. Attorney in the Southern District of New York. He served as lead counsel in the investigation, prosecution and seven-month trial of United States v. Usama bin Laden, et al., in which defendants were charged with and convicted of conspiracy to murder U.S. nationals overseas and the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He also participated in the nine-month trial of United States v. Omar Abdel Rahman, the prosecution of a conspiracy to attack the United States that involved the 1993 World Trade Center bombing. In 1995, Mr. Fitzgerald co-founded the Organized Crime-Terrorism Unit, investigating terrorist groups and facilitating coordination between the law enforcement and the intelligence communities. He also handled numerous drug trafficking cases and organized crime cases, including the six-month trial of United States v. John Gambino.

 

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Mr. Fitzgerald began his legal career in 1985 as a litigation associate at a New York-based firm before moving to the U.S. Attorney’s office in New York. A graduate of Harvard Law School, Mr. Fitzgerald earned his undergraduate degree from Amherst College. He has received numerous awards and recognition during his more than 20 years in public service, including the Cox, Coleman, Richardson Award for Distinguished Public Service from Harvard Law School (2007), “Lawyer of the Year” from The National Law Journal (2005) and the Attorney General’s Award for Distinguished Service (2002) and for Exceptional Service (1996). Mr. Fitzgerald is a Fellow of the American College of Trial Lawyers.