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The Future of Anti-Bribery Enforcement: Donald Trump and the Foreign Corrupt Practices Act

In the wake of the November election, lawyers who work in many (if not most) areas of the law are speculating as to how president-elect Donald Trump and his administration will change their field of expertise and impact their clients. The white collar bar is no exception. What will the new Department of Justice (“DOJ”) under Jeff Sessions prioritize and how will it enforce the nation’s anti-corruption and financial transparency laws? What will those choices do to our companies’ competitiveness, our professional ethics, and to recent decades of work in expanding financial transparency and positive corporate compliance culture? The Foreign Corrupt Practices Act (“FCPA” or “the Act”), the federal law prohibiting U.S. companies from bribing foreign government officials to accomplish business ends, is a good microscope for examining these questions.

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New Victims’ Rights Amendments Spark Debate

Though they’ve dominated recent news cycles, Donald Trump’s presidential victory and expanding legal access to marijuana are not the only outcomes of November’s election cycle. This year, three states – Montana, North Dakota, and South Dakota – each passed ballot initiatives adding “victims’ rights amendments” to their state constitutions. The measures were extremely popular, passing by margins of sixty percent or higher in all three elections. These states now join thirty-two others who have previously enacted similar amendments, and represent only part of a nationally expanding scheme of victims’ rights and protections that also includes legislation in all states and various federal statutes including the Crime Victims’ Rights Act (passed in 2004). The victims’ rights movement behind them, fueled by organizations like Marsy’s Law for All and the National Center for Victims of Crime, among others, continues to advocate for passage of constitutional victims’ rights amendments in all states, as well as an equivalent amendment to the U.S. Constitution. Indeed, amendments to the U.S. Constitution have been proposed on multiple occasions, though never ultimately ratified. Although the public, by and large, approves of these provisions, what do they really mean long-term for the different stakeholders of the criminal justice system, and are they ultimately wise?

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​New Customer Due Diligence Rules Expand Financial Transparency with Respect to Companies and Legal Entities

In an era of ever-increasing pressure for enhanced financial transparency, rules issued earlier this year by the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”) will require banks and other financial institutions to collect identifying information on the individuals who own and control companies and other legal entities seeking to open accounts, as well as to shore up existing anti-money laundering compliance efforts. While the final customer due diligence (“CDD”) rules contain various exceptions, exemptions, and efforts to avoid unduly duplicative recordkeeping, the compliance departments and officers of banks and other covered financial institutions will have substantial work in front of them to comply with the new requirements, which must be fully implemented by May 11, 2018. Part of the Obama administration’s effort to “strengthen financial transparency, and combat money laundering, corruption, and tax evasion,”the rules are evidence that individuals can generally expect lower levels of privacy with respect to their financial transactions, even when those transactions are undertaken by a business entity rather than directly by an individual him or herself.

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