As highlighted in the article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” the value and efficacy of an FCPA compliance defense is not just limited to more just and fair results when it comes to “hard enforcement” of the FCPA by the DOJ and SEC.
More importantly, an FCPA compliance defense will also increase “soft enforcement” of the FCPA. Soft enforcement generally refers to a law’s ability to facilitate self-policing and compliance to a greater degree than can be accomplished through “hard” enforcement alone.
Stated differently, the goal of the FCPA is to prevent bribery of foreign officials and that goal is best accomplished not solely through ad hoc “hard” enforcement actions, but by also better incentivizing corporate compliance designed to prevent improper conduct. Numerous prior posts (here, here, here, here, here, here, here, here, here, here, here) have highlighted this dynamic including how the DOJ has long recognized the importance of “soft enforcement” of the FCPA.
In recent speeches, DOJ Deputy Attorney General Trevor McFadden (as well as Attorney General Jeff Sessions) nicely articulated the policy rationale for an FCPA compliance defense. However, actions speak louder than words and the DOJ (and SEC) have continually failed to support the best positive incentivize to maximize “soft” enforcement of the FCPA.