Category Archives: Corruption: Domestic

DOJ Announces First FCPA Enforcement Activity After Months-Long Pause

by Kimberly A. Parker, Jay Holtmeier, Erin G.H. Sloane, and Christopher Cestaro

Left to Right: Kimberly A. Parker, Jay Holtmeier, Erin G.H. Sloane, and Christopher Cestaro (photos courtesy of WilmerHale)

Over the past week, the U.S. Department of Justice (“DOJ”) unsealed its first Foreign Corrupt Practices Act (“FCPA”) enforcement action and issued its first declination since the pause in FCPA enforcement mandated by President Donald Trump’s February 10, 2025 Executive Order (“February Executive Order”)[1] and the subsequent issuance of updated FCPA enforcement guidelines, the Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (“June Guidelines”).[2]

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A Reflection on the OECD’s Report (Part II): Governments’ Assessments of Corporate Anti-Corruption Compliance

by Veronica Root Martinez and Liz Carrasco

Left to right: Veronica Root Martinez and Liz Carrasco (photos courtesy of authors)

Governments have a responsibility to evaluate corporate compliance programs and an opportunity to design strong regulatory frameworks. To identify reforms and encourage implementation, they must first understand the state of compliance. The Organisation for Economic Cooperation and Development (OECD) report Governments’ Assessments of Corporate Anti-Corruption Compliance[1] provides a detailed look at how governments are approaching the assessment of corporate anti-corruption compliance programs. The report explains that clear, consistent standards for assessing these programs would improve both efficiency and credibility—but few governments have adopted such standards. This blog post explores governments’ roles in 1) guiding companies on compliance criteria, 2) enhancing oversight, and 3) the value of information sharing.

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Implications of Pausing FCPA Enforcement

by Kevin E. Davis

Photo courtesy of NYU School of Law.

On Monday February 10, 2025, President Trump issued an Executive Order (the “Order”) “pausing” enforcement of the Foreign Corrupt Practices Act (FCPA), citing its overly expansive and unpredictable enforcement as well as its adverse effects on the competitiveness of American companies. On the same day, the acting Deputy Attorney General of the Department of Justice ordered prosecutors in New York to dismiss pending campaign finance and bribery charges against New York City Mayor Eric Adams in part because of the Mayor’s support for the President’s policies on immigration.

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Confronting Percoco and Full Play: The Limitations of Honest Services Fraud and the Travel Act as an Alternative Source of Liability for Commercial Bribery

by Hector Correa Gaviria and Berke Gursoy

Left to Right: Hector Correa Gaviria and Berke Gursoy (photos courtesy of authors)

On September 1st, 2023, District Court Judge Pamela Chen delivered a startling decision, overturning the honest services fraud convictions of Hernán Lopez, former Fox executive, and FullPlay Group, S.A., an Argentine sports marketing company. Lopez and FullPlay were convicted of federal wire fraud for bribing employees of the Fédération Internationale de Football Association (FIFA) and CONMEBOL (the South American soccer federation under the umbrella of FIFA) to secure lucrative broadcasting contracts for some of Latin America’s most prestigious soccer tournaments and World Cup qualifying matches.

In United States v. Full Play,[1] a federal jury found that Lopez and FullPlay used U.S. wires to defraud FIFA by depriving the international soccer organization of the right to its employees’ faithful and honest services in violation of 18 U.S.C. §§ 1343 and 1346 (jointly referred to as honest services wire fraud “HSF”). However, soon after this conviction, the Supreme Court in Percoco v. United States limited the scope of HSF.[2] They did so by restricting the sources of fiduciary duty that can support an HSF conviction, holding that a limited number of on-point pre-McNally cases was insufficient to sustain an HSF conviction.[3] Through this ruling, Percoco essentially established a limiting principle for HSF; however, it did not articulate a test for when an actionable fiduciary duty under HSF could be found.[4]

In the wake of Percoco, the defendants in Full Play filed a motion for acquittal on their honest services charges. They argued that under Percoco, honest services fraud does not cover foreign commercial bribery because the statute requires defendants to induce a violation of the bribe-recipient’s fiduciary duty to the victim organization and because the type of fiduciary duty alleged in this case, a duty owed by foreign employees to a foreign employer, is not cognizable under §1346. Judge Chen agreed, holding that there was not “even a smattering” of pre-McNally cases to support the defendants’ HSF convictions.[5]

Though this case is under appeal, the judge’s ruling represents the difficulties of post-Percoco commercial bribery prosecutions through § 1346.[6] This article will argue that the Travel Act, 18 USC § 1952, represents an effective substitute for § 1346 that allows federal prosecution of commercial bribery through both HSF and state-level commercial bribery statutes.

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Shining a Light on the Shadows: A Data-Driven Look at Global Anti-Corruption Efforts

by Leonardo Borlini

Photo courtesy of the author

Corruption has been the target of significant international efforts in recent decades. A complex web of international treaties and monitoring mechanisms has emerged, aiming to curb this global scourge. But how effective are these efforts? Are countries truly implementing and complying with their international anti-corruption commitments?

In my recent study, Compliance Mechanisms as a Diagnostic and Prognostic Tool for the Evolution of the International Anti-Corruption Cooperation: A Data-Driven Study, forthcoming in 22(2) International Constitutional Law Journal (2024), I try to shed light on these questions. Using innovative text-as-data analysis, the study delves into the vast trove of evaluation and compliance reports produced by the monitoring mechanisms established by the main international anti-corruption. The findings offer a comprehensive assessment of the successes, failures, and enduring challenges in global anti-corruption cooperation.

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WilmerHale Global Anti-Bribery Year-in-Review: 2023 Developments and Predictions for 2024

by Kimberly Parker, Jay Holtmeier, Erin Sloane, Christopher Cestaro, Sandra Redivo, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae

Top left to right: Kimberly Parker, Jay Holtmeier, Erin Sloane, and Christopher Cestaro.
Bottom left to right: Sandra Redivo, Matthew Girgenti, Elliot Shackelford, and Keun Young Bae. (Photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP).

Although publicly announced Foreign Corrupt Practices Act (FCPA) enforcement activity remains lower than the levels reached a few years ago, 2023 saw a modest increase in the overall number of FCPA enforcement actions (26 in 2022 vs. 27 in 2023). This was seen especially in the number of corporate resolutions (12 in 2022 vs. 15 in 2023). The combined total of monetary penalties decreased, from $1.56 billion in 2022 to $776 million in 2023. Nonetheless, senior officials at the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) again signaled, through policy changes and public announcements, that anti-corruption enforcement is a priority and that there will be significant and growing enforcement efforts going forward. Below are the key takeaways regarding FCPA enforcement in 2023 and trends to keep in mind as we look ahead to 2024.

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United States v. Calk: The Second Circuit Construes the Bank Bribery Act

by Jonathan Rusch

Photo courtesy of the author

In any U.S. bank’s anti-bribery and anti-corruption compliance program, one of the fundamental federal criminal offenses that the program must address is the Bank Bribery Act (Act), 18 U.S.C. § 215.[1] Subsection 215(a) of the Act sets out two separate offenses:

(1) “corruptly giv[ing], offer[ing], or promis[ing] anything of value to any person, with intent to influence or reward an officer, director, employee, agent, or attorney of a financial institution in connection with any business or transaction of such institution”[2]; and

(2) “as an officer, director, employee, agent, or attorney of a financial institution, corruptly solicit[ing] or demand[ing] for the benefit of any person, or corruptly accept[ing] or agree[ing] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution.”[3]

Maximum penalties for a violation of either offense include 30 years’ imprisonment and a fine not more than $1,000,000 or three times the value of the thing given, offered, promised, solicited, demanded, accepted, or agreed to be accepted, whichever is greater.[4]

Surprisingly — given New York’s status as the world’s leading financial center[5], and the fact that section 215, with periodic revisions, has been in force for more than 75 years — the United States Court of Appeals for the Second Circuit had no occasion to construe the scope of section 215 until November 28, in United States v. Calk.[6] This post will summarize and discuss the key elements of Calk.

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Supreme Court Overturns Wire Fraud Conviction of Private Citizen Under Honest- Services Theory After Holding That the Jury Instructions Given Were Too Vague

Editor’s Note: The NYU Law Program on Corporate Compliance and Enforcement (PCCE) is following the recent U.S. Supreme Court decisions in Percoco v. United States and Ciminelli v. United States, which narrow the scope of honest services fraud and eliminate the so-called “Right to Control” theory in federal fraud cases, respectively. Together, these two cases continue a trend of circumscribing the federal government’s ability to prosecute domestic public corruption in the United States.

by Thomas H. Dupree Jr., Bradley J. Hamburger, Allyson N. Ho, Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon

Top row from left to right: Thomas H. Dupree Jr., Bradley J. Hamburger, and Allyson N. Ho. Bottom row from left to right: Brad G. Hubbard, Lucas C. Townsend, and Julian W. Poon. (Photos courtesy of Gibson, Dunn & Crutcher LLP)

“‘[T]he intangible right of honest services’ codified in § 1346 plainly does not extend a duty to the public to all private persons.” – Justice Alito, writing for the Court

The Supreme Court overturned a wire fraud conviction based on an honest-services theory. The Court reasoned that while such a theory can potentially cover private persons, it does not extend to all private persons. The jury instructions given in this case were too vague because they failed to define the intangible right to honest services with sufficient definiteness.

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Supreme Court Repudiates “Right-to-Control” Theory Under the Federal Wire Fraud Statute

by Helen V. Cantwell, Andrew J. Ceresney, Courtney M. Dankworth, John Gleeson, David A. O’Neil, Winston M. Paes, Bruce E. Yannett, Douglas S. Zolkind, and Scott M. Caravello

From top left to right: Helen V. Cantwell, Andrew J. Ceresney, Courtney M. Dankworth, John Gleeson, and David A. O’Neil. From bottom left to right: Winston M. Paes, Bruce E. Yannett, Douglas S. Zolkind, and Scott M. Caravello.
(Photos courtesy of Debevoise & Plimpton LLP)

On May 11, 2023, the United States Supreme Court issued its latest opinion in a series of decisions narrowing the scope of the federal fraud statutes. In that case, Ciminelli v. United States, the Court foreclosed prosecutors’ ability to pursue fraud charges for misrepresentations that did not result in financial harm, but instead deprived victims of information that may have been useful in deciding how to use assets. In repudiating this theory, known as “right-to-control,” a unanimous Court held that the federal fraud statutes touch only schemes aimed at traditional property interests, like money, and not “mere information.” To have held otherwise would have meant that “almost any deceptive act could be a crime.”

Going forward, the Department of Justice will not be able to prosecute a defendant for engaging in mere deceptive or unethical conduct, but must additionally prove that the defendant’s objective was to deprive the victim of money or property.

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Experts React to Supreme Court Decisions on Honest Services Fraud and the “Right to Control” Theory

From left to right: Carrie Cohen, Brian Jacobs, Brendan Quigley, Isabelle Kirshner, and Brian Linder (Photos courtesy of the authors’ firms)

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