The Federalist Society For Law And Public Policy Studies 2012 National Lawyers Convention: The Foreign Corrupt Practices Act.

• Position: The Federalist Society For Law and Public Policy Studies 2012 National Lawyers Convention - Discussion

PANELISTS:

LANNY A. BREUER

Assistant Attorney General, U.S. Department of Justice

MARK F. MENDELSOHN

Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP

MICHAEL B. MUKASEY

Partner, Debevoise & Plimpton and Former U.S. Attorney General

GEORGE T. TERWILLIGER III

Partner, Morgan Lewis & Bockius LLP

MODERATOR:

HON. WILLIAM H. PRYOR JR.

U.S. Court of Appeals, Eleventh Circuit

JUDGE WILLIAM H. PRYOR JR.: Welcome to the Criminal Law's practice group discussion of the Foreign Corrupt Practices Act. The Foreign Corrupt Practices Act (1) prohibits companies on U.S. exchanges from bribing foreign officials, and the Act requires those companies to maintain accurate financial records and internal accounting controls. The Act reflects the leadership of the United States in fighting corruption and upholding the rule of law abroad, but critics complain that judicial oversight of prosecutions under the Act is minimal, too aggressive enforcement leaves companies vulnerable to penalties for acts beyond their control, and expansive interpretations of the Act put American companies at a competitive disadvantage. These are hot topics. This week the Criminal Division of the Department of Justice and the Securities and Exchange Commission published a Resource Guide that provides insight into their enforcement of the Act. Some experts argue that the Act needs more reform, it needs a compliance defense, a better definition of foreign officials, and a requirement of willfulness for corporate criminal liability. This panel will explore these issues and debate whether the Act works well or requires reform. For this task, The Federalist Society, as usual, has assembled a distinguished panel of experts.

Our first speaker will be Lanny Breuer. Mr. Breuer was unanimously confirmed as Assistant Attorney General for the Criminal Division on April 20th, 2009. As head of the Criminal Division, Mr. Breuer oversees nearly 600 attorneys who prosecute federal criminal cases across the country and help develop the criminal law. He also works closely with the Nation's ninety-four U.S. Attorney's Offices in connection with the investigation and prosecution of criminal matters in their districts.

Mr. Breuer began his legal career in 1985 as an assistant district attorney in Manhattan, where he prosecuted violent crimes, such as armed robbery and gang violence, white collar crime, and other offenses. In 1989, he joined the law firm of Covington & Burling, where worked until 1997, when he joined the White House Counsel's Office as special counsel to President Clinton. Mr. Breuer returned to Covington in 1999 as co-chair of the White Collar Defense and Investigations practice group, where he specialized in white collar criminal defense and complex civil litigation. He is a fellow of the American College of Trial Lawyers, a barrister of the Edward Bennett Williams Inn of Court, and a member of the American Law Institute. Mr. Breuer received his B.A. from Columbia College in 1980 and his J.D. from Columbia Law School in 1985.

Our second speaker will be Michael Mukasey. Judge Mukasey served as the 81st Attorney General of the United States from November 2007 to January 2009. He oversaw all activities of the Department of Justice and advised on critical issues of domestic and international law. From 1988 to 2006, he served as a district judge on the United States District Court for the Southern District of New York, becoming chief judge in 2000. While on the bench, he handled numerous cases including the trial of Omar Abdel-Rahman, the so-called "Blind Sheik," and nine co-defendants convicted of a wide-ranging conspiracy that included the 1993 bombing of the World Trade Center and a later plot to blow up New York landmarks, including the Holland and Lincoln Tunnels, the United Nations, and the FBI's New York Headquarters in Lower Manhattan, and the case of Jose Padilla, arrested on a material witness warrant and believed to have returned to the United States to detonate a high radiation bomb and to blow up apartment buildings by sealing apartments, filling them with gas, and then detonating them.

Judge Mukasey began his career in private practice after graduating from Yale Law School in 1967, where he was a member of the Board of Editors of the Yale Law Journal. He served as an Assistant U.S. Attorney for the Southern District of New York in the Criminal Division from 1972 to 1976 and as chief of that office's Official Corruption Unit in 1975 and 1976. Since February 2009, Judge Mukasey has been a partner in the New York firm of Debevoise & Plimpton, where he [sic] a member of the litigation department and focuses his practice primarily on internal investigations.

Our third speaker will be Mark Mendelsohn. Mr. Mendelsohn is a partner in the Litigation Department of Paul, Weiss, Rifkind, Wharton & Garrison. He is a member of the firm's White Collar Crime, Regulatory Defense, and Securities Litigation practice groups. Before joining Paul, Weiss, Mr. Mendelsohn served as the deputy chief of the Fraud Section of the Criminal Division of the Department of Justice and is internationally acknowledged and respected as the architect and key enforcement official of the Department's modern Foreign Corrupt Practices Act Enforcement Program. He is widely known for dramatically increasing the level of sophistication of enforcement under the Act globally and for underscoring the importance of anti-corruption compliance. Before joining the Fraud Section, Mr. Mendelsohn was senior counsel in the Department's Computer Crime and Intellectual Property Section in Washington, and prior to that served for nearly six years as an Assistant U.S. Attorney in the Southern District of New York. Mr. Mendelsohn earned his B.A. from Yale in '89, his J.D. from the University of Virginia School of Law in '93, and after graduating from law school, served as a law clerk for Judge Denny Chin on the U.S. District Court for the Southern District of New York.

I'm detecting a pattern about the Southern District of New York.

[Laughter.]

Our fourth and final speaker will be George Terwilliger. Mr. Terwilliger is a partner in Morgan Lewis's litigation practice. He provides counsel in litigation, internal investigations, and enforcement proceedings, especially those involving the Department of Justice, the Securities and Exchange Commission, and other primary enforcement agencies. Mr. Terwilliger served as a presidential appointee in two administrations. He was appointed the United States Attorney by President Ronald Reagan and served as deputy attorney general, the number two official of the Department, and as Acting Attorney General in the George H.W. Bush administration. He has ten years of experience as a front-line federal prosecutor, conducting investigations, trials, and appellate proceedings.

Major cases in which Mr. Terwilliger was personally involved as a prosecutor include the BCCI International Banking scandal where he led negotiations for the government that resulted in a comprehensive criminal and civil resolution involving more than twenty-five parties in the United States and abroad. He has had leadership responsibilities in several domestic and international cases including managing the federal response to massive civil unrest in Los Angeles, working directly with the FBI in an operation to rescue federal officers held hostage in a prison takeover, and addressing, through the National Security Council and in legal proceedings, massive Haitian migration to the United States. While a front-line prosecutor, he tried scores of cases and has had lead responsibility in significant white collar crime and terrorism matters.

Each speaker will begin with opening remarks of ten to twelve minutes followed by panel discussion, and then we'll respond to questions from the audience. I will go ahead and warn those of you who haven't been to a panel that I moderate before that Q&A will be something everyone always looks forward to, it's one of the most popular aspects of our program, but we really do want it to be Q&A. We asked the panelists to be our experts and our speakers today, and if you're saddened that you weren't invited to be a panelist, please don't invite yourself to pretend to be one.

[Laughter.]

With no further ado, I'm going to ask Mr. Breuer to come forward and begin our discussion.

LANNY A. BREUER: Well, thank you, Judge, very much. I'm really delighted to be here, delighted to be at The Federalist Society, and delighted to be with such an august panel. And as the Judge said, I, too, am very much looking forward to the questions and answers and really believe that with respect to the FCPA, our topic today, anything that is of interest to the audience at least I would be delighted to address.

I begin, though, just with sort of the foundation that I think the fight against corruption is one of the signature fights and worthy causes that we can have today. I think corruption is the reason why young people around the world often feel that their dreams are unattainable, because it doesn't matter how hard the young person works, it doesn't matter how hard he or she works at school, what matters is the power structure in that country and whether the corruption takes hold, that what really matters is who you can pay off and what you can do, and I think we see that throughout the world. We see that with a fruit merchant in Tunisia, we see that with young people and rock musicians in Russia, and we really see that taking hold, and I think the United States has a responsibility to be a leader in that effort, I think we have been a leader in that effort, and I think much of the world is following. And certainly with respect to law enforcement, we see that more and more. We've certainly seen that during my tenure the last four years, and, of course, before that when Mark headed up this effort as well.

Obviously, what happened over the last week, and I assume will be one of the...