Several interesting cases this year involve waiver and privilege jurisprudence. Perhaps none more sharply underscores the importance of a well-written proffer agreement when making disclosures to the government than a decision by the Fourth Circuit. The court’s analysis depends in part on the operation of Fed. R. Evid. 502.
In August 2018, in an effort to battle corruption, Brazil enacted Decree-Law No. 9,468/18, which provides broader power to the Public Transparency and Anti-Corruption Council. The Council’s purpose is to discuss ideas and suggestions to improve policies and strategies aimed at combating corruption and impunity within the Federal Public Administration.
For a closer look at this issue and others impacting the Latin America region, please visit our Latin America Legal Blog.
Third Circuit Clarifies Public Disclosure Bar in False Claims Act
In United States v. Omnicare, Inc., the Third Circuit clarified the operation of the public disclosure bar in the False Claims Act (FCA). The court held that publicly available information “could not have reasonably or plausibly supported an inference” of fraud. This information included government reports of known fraud schemes and a 10-k financial disclosure by the defendant company. The Third Circuit rejected application of the bar because the relator used non-public information to “make sense of publicly available information.”
The Second Circuit’s recent decision in United States v. Hoskins may impact enforcement of U.S. economic sanctions programs. The Hoskins decision precludes the government from charging a foreign national acting abroad with violating the Foreign Corrupt Practices Act (“FCPA”) through theories of conspiracy and accomplice liability. This holding is equally applicable to U.S. sanctions law.
The UK Sanctions and Anti-Money Laundering Act signifies major changes to the UK’s anti-money laundering and sanctions regimes. Britain’s overseas territories, often criticized as tax havens, are now required to establish public registries of beneficial corporate ownership by December 31, 2020. The Act also includes a Magnitsky Amendment, modeled on U.S. law, enabling sanctions against foreign government officials implicated in gross human rights abuses.
In an effort to stimulate innovation in Switzerland’s financial markets, the Swiss Financial Market Supervisory Authority (“FINMA”) announced its plans to relax anti-money laundering requirements for certain smaller financial technology firms. If implemented, these plans would go into effect on January 1, 2019.
The Second Circuit issued its judgment on the case we have been monitoring, U.S. v. Hoskins. The court held that the “government may not expand the extraterritorial reach of the FCPA by recourse to the conspiracy and complicity statutes.”
This month, former Malaysian Prime Minister Najib Razak, who served from 2009 to 2018 as Malaysia’s sixth Prime Minister, pleaded not guilty to three new money-laundering charges related to the alleged multibillion-dollar looting of 1Malaysia Development Berhad (“1MDB”), a Kuala Lumpur-based strategic development company that is wholly owned by the Malaysian Ministry of Finance. The scandal and related public furor led to two significant outcomes. First, a historic defeat for Razak’s Barisan Nasional coalition of right-wing and central parties in the 14th Malaysian general election on May 9, 2018. Second, Razak’s arrest by the Malaysian Anticorruption Commission on July 3, 2018.
A recent landmark change to Singapore’s criminal justice system providing for Deferred Prosecution Agreements (“DPAs”), or voluntary alternatives to adjudication, should increase corporate accountability for acts of bribery, corruption, and money laundering.
Many conclude that a C plea means a Corporate Plea. Used infrequently, a C plea restricts discretion of a federal district judge to sentence a criminal defendant. By expressing his concerns about a proposed C plea for a company, one federal judge changed the result. In an article published by the American Health Lawyers Association, Rebecca Worthington and Tom Zeno analyze the case. Additional posts about this case can be found here and here.