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The Legacy of Frederick Bourke Rears Its Head

Tom Fox | December 11, 2015

Sometimes it does not take active bribery or corruption by an individual to violate anti-corruption laws such as the Foreign Corrupt Practices Act. It is one of the few laws which makes illegal consciously avoiding the actual knowledge of the underlying crime. The legislative history of the FCPA makes clear that Congress intended that the so-called “head-in-the-sand” defense—also described as “conscious disregard,” “willful blindness,” or “deliberate ignorance”—should be covered so that company officials could not take refuge from the Act’s prohibitions by their unwarranted obliviousness to any action (or inaction), language, or other “signaling device” that should reasonably alert them to the “high probability” of an FCPA violation. 

This interpretation was confirmed in the criminal case of Frederick Bourke. Bourke had invested in an enterprise in Azerbaijan, and it later turned out this enterprise was engaged in bribery and corruption to obtain certain oil and gas rights....

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