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Expert Analysis

'Knowingly' Vague: Intent In The FCPA

Law360, New York ( May 26, 2011, 2:09 PM EDT) -- What does it mean to "knowingly" falsify corporate records in violation of Section 13(b)(5) of the Foreign Corrupt Practices Act? Is a negligent accounting error enough? Or must the government prove scienter — i.e., that the defendant falsified records with the "intent to deceive, manipulate or defraud?" And what is the difference, if any, between the intent element of Section 13(b)(5), and of U.S. Securities and Exchange Commission Rule 13b2-1, which also prohibits records falsification, but which does not require that such falsification be committed "knowingly?"...

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