I launched this website in 2009 and have writing on Foreign Corrupt Practices Act and related topics on a near daily basis. Everything I have written or said about the FCPA (whether on this website, my more formal articles or my Congressional testimony) has represented my genuine beliefs and you can hold me accountable for them.
Yet when it comes to many others writing and speaking in the FCPA space, the question arises – who speaks for whom? Are others expressing genuine beliefs and willing to be held accountable for what they say and write.
Numerous prior posts have exposed the flip-flopping of former DOJ/SEC enforcement officials on various FCPA topics (see here for instance) and the reverse of the situation was first highlighted on these pages when an FCPA enforcement critic and reform advocate – Andrew Weissman – was recently selected as the DOJ’s new fraud section chief.
Others – including those on Capitol Hill – soon picked up on the issue. As highlighted in this recent post Attorney General Nominee Loretta Lynch’s was specifically asked by a Senator as follows.
Q: As you know, the Criminal Division’s Fraud Section is charged with investigating and enforcing the criminal provisions of the FCPA. Recently, Andrew Weissmann was selected to be the Chief of the Fraud Section. Mr. Weissmann is a former prosecutor and FBI general counsel. In private practice, however, Mr. Weissmann has been an outspoken critic of DOJ’s FCPA program. Specifically, in a report36 Mr. Weissmann drafted for the U.S. Chamber of Commerce’s Institute for Legal Reform, he has recommended that: (1) a compliance defense to the FCPA should be added; (2) a company’s liability should be limited for the prior actions of a company it has acquired; (3) a “willfulness” element should be added for corporate criminal liability; (4) a company’s liability should be limited for the actions of a subsidiary; and (5) the definition of “foreign official” under the FCPA should be changed. Do you agree with any, some, or all of Weissmann’s proposals for reforming the FCPA?
RESPONSE: It is my understanding that Mr. Weissmann made these comments while in private practice and in connection with his representation of the U.S. Chamber Institute for Legal Reform (“Chamber”). It is also my understanding that, in the intervening time period, the Department has met with the Chamber, as well as other stakeholders, to engage in a healthy and productive dialogue regarding the Department’s interpretation and application of the FCPA. If confirmed as Attorney General, I would continue to foster dialogue with the Chamber and other stakeholders regarding our FCPA program.
That was a nice dodge by Ms. Lynch.
Yet it conveniently ignored – as highlighted in the previous post – that Weissmann, in his personal capacity, has long challenged traditional notions of corporate criminal liability and argued that when the DOJ “seeks to charge a corporation as a defendant, the government should bear the burden of establishing as an additional element that the corporation failed to have reasonably effective policies and procedures to prevent the conduct. See “Rethinking Corporate Criminal Liability,” 82 IND. L.J. 411, 414 (2007).
Some will say that when a lawyer in private practice writes a law review article that he/she is advancing their clients interests.
Sure, a lawyer is advancing their client’s interest in writing a legal brief or making an argument before a court.
But a law review article? What about a law firm client alert? What about when a lawyer appears on an FCPA panel at a conference and spontaneously responds to fellow panelist comments or audience questions?
Are we to discount everything the lawyer says about the FCPA because they are lawyer? If so, is there any genuine or legitimate beliefs being articulated about the FCPA that people are willing to be held accountable for?
This recent Bloomberg article about Weissmann and his new DOJ position states:
“A person familiar with Weissmann’s thinking said he viewed most of his [FCPA] congressional testimony as giving his personal views rather than doing work for a client. In the instances where he didn’t disclose his Chamber connection, Weissmann agreed to testify after congressional officials reached out to him proactively, said the person, who asked not to be named because he wasn’t authorized to speak publicly.”
The irony of this general topic is that when DOJ/SEC FCPA enforcement attorneys speak on FCPA topics their comments are preceded by the standard disclaimer – something to the effect of – the views I express today are my own and do not necessarily represent the views of the DOJ/SEC.
Hardly. The enforcement attorney is often carrying forward the talking points of the DOJ/SEC (a dynamic that is apparent when one compares various speeches, etc.).
So the question remains – in the FCPA space, who speak for whom?
All I know is that everything I have written or said about the FCPA has represented my genuine beliefs and you can hold me accountable for them.