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Wiley Rein’s Committee on Foreign Investment in the United States and National Security Practice has published an updated CFIUS Handbook (Third Edition). CFIUS is an interagency committee that reviews controlling foreign investments in U.S. businesses (including mergers, acquisitions, and takeovers) that may raise national security concerns.
The updated CFIUS Handbook provides an overview of the national security review process, details key changes to the process as a result of the Foreign Investment Risk Review Modernization Act, and highlights important considerations for successfully navigating a CFIUS review/investigation.
Dmitrij Harder, a Russian-born German national based in the Philadelphia area, has lost his appeal against a 60-month prison sentence for violating the Foreign Corrupt Practices Act. He was convicted of bribing an officer at the European Bank for Reconstruction and Development for loan approvals.
Harder argued that the $3.5 million in bribes he paid to secure financing for two Russian energy projects were “highly beneficial,” creating 6,500 jobs and boosting “the entire economy of the (eastern Siberia) region,” and that this should have been considered a mitigating factor in his sentencing.
He had pleaded guilty in 2016 to two counts of violating the FCPA. He forfeited $1.9 million as part of his plea deal. The Third Circuit has now ruled that the trial judge considered this argument and correctly rejected it.
In an 18-minute episode of “Let’s Talk FCA”, Crowell & Moring’s Mana Lombardo and Jason Crawford talk with Caroline Lee, Certified Fraud Examiner and Senior Manager with Deloitte Financial Advisory Services LLP, about the role that forensic investigators play in FCA cases.
The 11th Circuit Court of Appeals has ruled that a qui tam relator is not entitled to intervene in criminal forfeiture proceedings that are derived from the relator’s False Claims Act case, in order to seek a share of the forfeited assets.
In this case, the relator alleged that her employers submitted fraudulent claims to federal healthcare programs. The government did not intervene, but instead prosecuted them under overlapping criminal charges. The relator sought to intervene in the subsequent forfeiture proceedings, using the alternate-remedy provision of the FCA, but the district court denied her motion, which she appealed.
The 11th Circuit held that criminal forfeiture statutes barred her from intervening in the proceedings unless she either had a legal right to the property before the defendant committed the offense, or was a bona fide purchaser for value. However it noted that she would be entitled to a share if the government successfully pursued civil action against the employers.
The United States Trade Representative has published the proposed text of the United States-Mexico-Canada Agreement, intended to replace the 25-year-old NAFTA. The USMCA includes 34 chapters – including one on corruption – plus 11 annexes and 12 side letters.
Baker McKenzie’s Mexico-based lawyers Jonathan Adams and Lorena Castillo Lopez highlight the USMCA’s anti-corruption provisions, describing them as “a promising path forward to combat corruption both in the public and private sector, taking highly visible action through legislative measures, administrative enforcement actions and international cooperation.”
In this context, they advise companies “to undertake comprehensive risk assessments to develop or strengthen their compliance programs and internal audit procedures to self-align to international standards and mitigate potential corruption risks.”