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FCPA-Palooza

I first began using the term FCPA Inc. in April 2010 (see here [1]).

I then coupled FCPA Inc. with Business of Bribery in this [2] February 2012 post to describe a presentation I gave at Indiana University Robert H. McKinney School of Law regarding a work in progress of the same title.

I am glad to see that the terms have caught on as yesterday the Wall Street Journal ran a series of FCPA related articles, an FCPA-Palooza of sorts, including a lead article titled “FCPA Inc.: The Business of Bribery” (see here [3]).

The article is spot-on and contains the following quotes from industry participants.  “It’s one of the few sort of crown-jewel practices right now.” “When you get these situations and you have a young enforcement attorney…telling you to look under every rock, you do it.”   “If you get two of these [FCPA investigations] a year as a partner, you’re pretty much set.”

Assistant Attorney General Breuer is quoted in the article as follows. “We absolutely need companies through their firms to provide us with their investigations.”  The article states that “prosecutors test information they receive from the companies and conduct parallel investigations” with Breuer stating that “we’re not simply relying on what the companies give us.”  Many FCPA practitioners (including this former one) are likely to disagree with this statement.  In representing corporate clients in an FCPA inquiry, it is common for counsel to hand over to the enforcement agencies witness interview memos, key documents in chronological order, and investigative reports (if done).  While it is difficult to assess what the DOJ and/or SEC did after that, I never once got the sense that the enforcement agencies tested the information or conducted a parallel investigation.

The Wall Street Journal FCPA-Palooza also included an article (here [4]) concerning compliance costs, an article (here [5]) concerning prosecution of individuals, and an article (here [6]) regarding the FCPA’s history and certain reasons for the increase in enforcement.

The WSJ compliance article notes that as “part of the corporate cost for stepped-up enforcement of the Foreign Corrupt Practices Act over the last several years has been the creation of new compliance structures at companies that hope to avoid indictments and million-dollar fines under the U.S. antibribery law.”  Of course, not even the most robust, state-of-the-art FCPA compliance program will allow a company to avoid indictment as a matter of law.  Such programs merely best position companies for leniency as determined by the enforcement agencies behind closed doors in Washington D.C.  This needs to change and I have set forth the reasons for an FCPA compliance defense in my recent scholarship “Revisiting a Foreign Corrupt Practices Act Compliance Defense” (here [7]).

The WSJ individual prosecutions article notes the absence of individual prosecutions in most corporate FCPA enforcement actions, the DOJ’s difficulty of extraditing foreign nationals charged with FCPA offenses, and the string of recent DOJ losses in individual enforcement actions when it is put to its burden of proof.  For more on this last issue, see my recent article “What Percentage of DOJ FCPA Losses in Acceptable” (here [8]).

The WSJ Law Blog also contributed to the FCPA feast with this [9] post which asked whether corporate FCPA scrutiny and enforcement actions move markets.  In answering the question, the post states as follows.  “In general, we found a lot of shrugging on the part of investors.  The average change in stock price from the day before to the day after the disclosure of an FCPA investigation was a decrease of 1%.  […] It was far easier to study market reaction to FCPA settlements. Companies’ stock prices increased, on average, by 1.1% after enforcement actions were announced.”

The WSJ Law Blog also noted here [10] that “FCPA enforcement shows no signs of cooling.”  I agree.  As noted in the FCPA 101 feature of my website (here [11]) there are several practical, as well as provocative, reasons for why FCPA enforcement has increased.  Among the later is the industry itself.

At least more people are thinking and talking about it now after the Wall Street Journal’s FCPA-Palooza.