Both civil and criminal agencies charged with enforcing U.S. laws have turned increasingly to broad based use of “asset freeze orders.” Legal counsel and their clients should understand the issue, particularly as there is a split in the Circuits and the Supreme Court has not yet addressed the issue. On June 19, 2013, the U.S. Court of Appeals for the Second Circuit issued an opinion “clarifying” its 1991 decision in U.S. v. Monsanto, where it held that a (criminal) defendant who wishes to use frozen funds for their defense is entitled to a pretrial hearing to determine whether there is probable cause to believe the defendant committed the crimes that formed the basis for the forfeiture and whether the funds are forfeitable. In U.S. v. Bonventre, the Second Circuit ruled that a defendant must first make a “threshold showing” that a Monsanto hearing is warranted.
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In a development which took some by surprise, on 9 October 2012, the UK’s Serious Fraud Office (SFO) issued new policies under the Bribery Act 2010, which could change the way some companies do business. The SFO is the UK independent government agency that investigates and prosecutes serious or complex fraud, as well as corruption. Its powers are similar in some respects to those of the U.S. Securities and Exchange Commission and U.S. Department of Justice. The new policies are related to facilitation payments, business expenditure (hospitality) and corporate self-reporting. The announcement is meant to revise existing SFO pronouncements on the enforcement of the Bribery Act 2010, which took effect on 1 July 2011. Given the new Act’s tough penalties and the apparent ambiguity surrounding the consequences of self-disclosure, businesses may want to take extra care to comply with its provisions. Accordingly, businesses should consider seeking the advice of legal counsel in navigating this statute and its attendant revisions.
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