96 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 97 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C C New Anti-Bribery Law – Criminal Liability for Foreign Officials For almost half a century, the FCPA has made it a crime to pay, give, or offer money or a thing of value to a foreign official in order to obtain or retain business, influence a decision, or secure some improper advantage. Critically, the prohibition was on the payor, but not on the recipient of the funds or gift. In an effort to “create a powerful new tool for fighting foreign corruption at its source” and complement the FCPA, new legislation coined the Foreign Extortion Prevention Act (“FEPA”) was signed into law at the end of 2023. FEPA broadens the scope and reach of U.S. anti-bribery laws by enabling the DOJ to bring criminal charges against foreign officials who demand or accept a bribe from a U.S. citizen or company, or within a U.S. jurisdiction. Supplementing the FCPA with FEPA closes the gap of criminal liability – now both the payor and payee can be criminally liable. Under FEPA, violators would be fined up to $250,000 or three times the value of the bribe, and may be imprisoned for up to 15 years, or both. Continuing Focus on Crypto Industry “Crypto is here to stay – that’s become very clear with the launch of a slew of Bitcoin exchange-traded funds. Given the complexity and the turbulent enforcement arena, legal questions surrounding crypto are going to be at the forefront for some time.” This statement from the leader of the SEC’s Crypto Assets and Cyber Unit in the Division of Enforcement confirms what the industry has been experiencing; the authorities’ focus on the crypto industry is far from fleeting. Indeed, the SDNY is keen on prosecuting crypto cases and has shown it will commit the resources and talent needed to investigate and try these complicated crypto cases. Toward the end of 2023, for example, Sam Bankman-Fried was convicted of a slew of federal charges arising from the collapse of his crypto exchange, FTX. Perhaps even more notably, the DOJ and SEC in November reached a settlement worth over $4B with Binance.com – the world’s largest crypto exchange – for violating the Bank Secrecy Act, failing to register as a money transmitting business, and failure to maintain an effective antimoney laundering program, among other charges. Finally, in June, the SEC sued Coinbase – the nation’s largest crypto exchange – for allegedly operating as an unregistered securities exchange, broker, and clearing agency. The SEC alleged that the crypto tokens for which Coinbase was facilitating trading should have been registered as securities. The question of “whether tokens are securities” is an issue that is currently being litigated in that case, and will undoubtedly be litigated at the appellate level and very likely at the Supreme Court. And the crypto industry is watching closely. White Collar Defense In an effort to “create a powerful new tool for fighting foreign corruption at its source” and complement the FCPA, new legislation coined the Foreign Extortion Prevention Act (“FEPA”) was signed into law at the end of 2023.
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