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Elevating The FCPA Conversation

In running this website, I run FCPA and related searches literally every 24 hours.

Because of these searches, I am very familiar (at times I think too familiar for my overall health) with the ebb and flow of information and reporting of Foreign Corrupt Practices Act and related issues.  I have previously lamented the nature and quality of certain FCPA commentary (see here [1] for instance) and today I coordinate this post with a similar post [2] being made on Tom Fox’s FCPA Compliance and Ethics Blog so that we can jointly call attention to a problem that is infecting the FCPA conversation.

The infection is poor quality and/or self-serving FCPA information in the public domain, derelict gatekeeping that results in such information being reported as fact, and the overall use of such infections and deficiencies to market FCPA and related products or services.

The remedy is for all who enter or participate in the FCPA conversation to elevate the FCPA conversation.

This post traces a recent prediction found in a law firm FCPA alert, how this prediction has literally travelled around the world in a short time, how this prediction has been converted into a fact by various gatekeepers eager to write about FCPA topics, and how this prediction turned fact has made its way back to the U.S. and is now being used to market FCPA and related products and services.

Missed in the entire conversation of course is that the originating source – an FCPA Inc. participant – was making a prediction.

On February 5th, a law firm released a Foreign Corrupt Practices Act Alert.  At the end of the 31 page document, there is a section titled “Predictions for 2014” and it states, in pertinent part, as follows: “we may see the following developments potentially unfolding in 2014 and beyond:

“While the number of enforcement actions may decrease or hold steady, we can expect some ‘blockbuster’ settlements in 2014 of matters that have long been under investigation.”

Such law firm alerts/releases are frequently and widely circulated by law firm marketing departments in the hopes of drawing attention to the law firm’s FCPA practice.

The recipients of such information are many – I am usually one of them – but more often the recipients tend to be non-lawyer journalists who are frequently looking for hooks, catchy titles, etc. for articles.

Sure enough, on February 10th, an English language news service in China ran the headline – based on the law firm’s prediction –  “Firms face ‘blockbuster’ fines in US over bribery cases in China.”  The lead paragraph stated:

“The United States is expected to impose ‘blockbuster’ fines on companies bribing foreign officials this year, with China a likely target of US investigations, lawyers say.”

Given how things tend to spread like wildfire on the internet and social media, this headline was rebroadcast nearly instantaneously around the world.

The headline made its way back to the U.S. on February 11th when a respected news outlet included in a headline “looming blockbuster fines.”

A company that sells FCPA compliance products and services then touted one its compliance products under the heading “More FCPA enforcement expected in China” and stated as follows.

“The United States is expected to impose ‘blockbuster’ fines on companies bribing foreign officials this year, with China a likely target for U.S. investigators, according to a report published” by the law firm.

And then of course, the whistleblower lawyers got in on the action on February 17th as one firm ran the headline “Blockbuster Year Predicted for the FCPA in 2014.”  The article begin:

“Less than two months in to the new year, individuals are already predicting a massive year for prosecutions and settlements in Foreign Corrupt Practices Act cases, according to the South China Morning Post.”

There was of course nothing wrong with the law firm’s initial statement – it was after all a prediction.  However, the media recipients of FCPA Inc. marketing material need to better exercise the gatekeeper role they play and realize (as many do already) that much of FCPA Inc. marketing material is really no different from an investment advisor predicting a great year for stock returns (in the hopes of attracting client money) or a car salesperson predicting a brisk year in car sales (in the hopes of driving up demand and thus greater prices).

In short, the FCPA conversation has turned silly in many respect and it needs to be elevated as there are many issues where high-quality, experienced and informed commentary are needed.

All who enter or participate in the FCPA conversation can take steps towards that end.  In this regard, this [3] recent New York Times DealBook article “More Reflection, Less Action” is a good start as are the articles highlighted in this [4] recent post.