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FCPA Parallels

I tend to read the news with Foreign Corrupt Practices Act goggles on. It’s an occupational hazard I guess.

Sure, the FCPA is a specific statute, enforced in unique and specific ways, but there are many issues highlighted in the news that have FCPA parallels.

This post provides several examples.

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This recent in-depth report [1] highlights how new and expanded medical definitions create more patients – and a lucrative market for drug firms. After listing several new medical conditions, the report notes:

“None of these conditions was considered part of mainstream medicine just 20 years ago. But thanks to new definitions or lowered thresholds, millions more people — overnight — fit the criteria of having treatable disorders.

Many independent doctors and researchers are skeptical, saying the new conditions are the product of medical groups that get pharmaceutical industry funding, researchers looking to advance their careers and drug companies aiming to broaden the market for expensive new products.”

The FCPA parallel is that in this new era of FCPA enforcement, there are several new and creative definitions of “bribery” (i.e. FCPA violations) and the thresholds are calling something an FCPA violation is practically non-existent given the lack of judicial scrutiny of most FCPA enforcement.

Who benefits from the new definitions of “bribery.” FCPA enforcement attorneys looking to advance their careers who tend to measure their tenure by the number of enforcement actions brought (see here [2] for the prior post) and FCPA Inc., a multi-billion niche industry that did not exist a decade ago.

Who are the self-described architects of this new era of FCPA enforcement and what are they doing now?

They are making millions of dollars providing private sector FCPA investigative and compliance services to business organizations subject to the new era of FCPA enforcement they helped create.

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As highlighted in this article [3]:

“Veterans Affairs Secretary Robert McDonald ‘is getting a ride through the media flames … for suggesting that waits for treatment at VA hospitals are similar to standing in a long line at Disney World. ‘When you go to Disney,’ Mr. McDonald said, ‘do they measure the number of hours you wait in line? What’s important is, what’s your satisfaction with the experience?’

As noted in the article, “the VA’s health-care wait lines are a metaphor for the entire U.S. government.”

The FCPA parallel is that, as highlighted for years on this page, [4] the gray cloud of FCPA scrutiny simply lasts too long and results in a wide range of negative consequences for companies under FCPA scrutiny. (See here for the article “FCPA Ripples. [5]“).

For more information on the often long duration associated with FCPA scrutiny, see this prior post [6] “The Foreign Bribery Sinkhole at Justice” as well as FCPA Flash podcasts here [7] and here [8].

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This recent article [9] discusses the use of economic statistics in politics and states:

“Economics fancies itself a science, and [many used to believe] that practitioners could draw dispassionate conclusions. But [notable economists] in recent years [have] undergone something of a crisis of economic faith. “The problem is, you can’t look at the data objectively most of the time. “You have prior beliefs that are methodological or ideological about the impact of things, and that inevitably color the assumptions you make.”

[…]

“All the incentives push us toward overconfidence and to ignore humility—to ignore the buts and the what-ifs and the caveats.  “You want to be on the front page of The Wall Street Journal? Of course you do. So you make a bold claim.” Being a skeptic gets you on page A9.”

The FCPA parallel is that many FCPA Inc. participants have adopted creative and haphazard counting methods that inflate FCPA enforcement statistics. For additional reading, see this article which exposes distorted FCPA enforcement statistics [10] as well as this recent Q&A [11] about the article.

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As noted in this recent article [12]:

“[Compliance concerns have] led banks to cut off access to key account services and other tools for such firms in a process widely known as derisking. Cutting off those services means that money service businesses, and their customers, will likely turn to less-regulated corners of the financial system to conduct business, which could lead to an increase of risk in the financial system, the report said.”

The FCPA parallel is that excessive risk aversion has meaningful, real-world consequences. See here [13] and here [14] for prior posts titled “A Case Study in Risk Aversion” and “Merely a Coincidence or FCPA-Related” highlighting several instances of excessive FCPA risk aversion and its resulting consequences.