Some think – or at least I’ve been told – that certain of my Foreign Corrupt Practices Act views are controversial or out of the “main stream” (whatever the “main stream” actually is or means).
Yet, I am confident that much of what I write and talk about represents silent majority views.
Indeed, as I’ve commented before, one of the interesting things about writing about the FCPA and related issues on a daily basis is that often I just need to wait for a former FCPA enforcement official to say the same thing.
It happens frequently.
Looking for support as to the following issues:
- “it is often difficult to determine where the lines [regarding the FCPA’s anti-bribery provisions] are to be drawn,”
- the enforcement agencies “push the boundaries of jurisdiction for substantive FCPA charges,”
- “U.S. enforcement personnel have interpreted the language [of the obtain or retain business element] broadly,”
- that it is “not necessarily easy to identify the dividing line between a permitted facilitating payment and a prohibited bribe,” and
- that various public policy issues are raised because “virtually all DOJ and SEC enforcement cases against business entities are settled.”?
That’s easy – all of the above quotes are from writings of the self-described “architect and key enforcement official of the DOJ’s modern FCPA enforcement program.” (See here)
Does every FCPA issue need to be voluntarily disclosed to the DOJ or SEC? Don’t believe just me that the answer is no. A former DOJ Deputy Assistant Attorney General, Criminal Division has stated the same thing (see here for the prior post). So has a former DOJ fraud section chief (see here).
A central theme in my “The Facade of FCPA Enforcement” article was that not all instances of FCPA scrutiny resolved via non-prosecution and deferred prosecution agreements represent actual, provable violations of the FCPA. A former DOJ attorney general has stated the same thing (see here).
Does FCPA enforcement appear – in certain instances – to be a cash cow for the government? Former enforcement officials have said the same thing and one of the more forceful comments on this issue came from a former DOJ Assistant Chief for FCPA enforcement who stated that “[t]he government sees a profitable program, and it’s going to ride that horse until it can’t ride it anymore.”
Numerous other examples also abound.
For instance, just last week a candid quote was captured by the Wall Street Journal in this article concerning SEC enforcement. Robert Khuzami, who stepped down as the SEC’s head of enforcement in January, stated that the SEC has de facto power as “judge, jury and prosecutor.” This dynamic is also highlighted in my “Facade of FCPA Enforcement” article. (The referenced Wall Street Journal article is also an interesting read regarding whether SEC enforcement is a numbers game).
Often times, waiting for an enforcement official to leave government service is not necessary. Another fruitful source that informs my FCPA and related views are statements of current enforcement officials made prior to government service.
For instance, as highlighted in this prior post, one of the more informed and forceful critiques of NPAs and DPAs is from Mary Jo White, the current Chair of the SEC. As highlighted in this prior post and in the “Revisiting an FCPA Compliance Defense” article, one of the more notable advocates of an FCPA compliance-like defense is James Doty, appointed by the SEC in 2011 to be Chair of the Public Company Accounting Oversight Board.
In short, what’s so controversial or out of the “main stream” writing and talking about the same issues former enforcement officials are likely to say (or have already said)?