Judge “Deeply Troubled” By DOJ’s Outsourcing Of Investigations

Resolution documents in corporate Foreign Corrupt Practices Act enforcement action frequently highlight the company’s cooperation, making witnesses available for interviews, identification and translation of relevant documents, etc.

Given this typical dynamic in corporate FCPA enforcement actions, a recent decision by U.S. District Court Judge Colleen McMahon, while outside the FCPA context, is FCPA relevant in that Judge McMahon stated that she was “deeply troubled” by the DOJ’s outsourcing of investigations.

In U.S. v Matthew Connolly and Gavin Black, Black moved for relief under the Supreme Court’s 1972 decision in U.S. v. Kastigar “on the basis that statements obtained by his employer, Deutsche Bank AG, in the course of what purported to be an internal investigation into the possible manipulation of the London Inter-Bank Offered Rate (LIBOR) are fairly attributable to the Government within the meaning” of the Supreme Court’s 1967 decision in Garrity v. New Jersey.

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