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ABA Ponders FCPA Reform

Add the American Bar Association (“ABA”) to the list of organizations seeking a voice in Foreign Corrupt Practices Act reform discussions.

On October 29, 2011, T. Markus Funk (Perkins Coie – here), a litigation and white collar criminal defense and investigations partner specializing in corporate FCPA compliance and internal investigations, was asked to weigh in on the FCPA debate on behalf of the US and global business community.  Funk, a former federal prosecutor in Chicago and US State Department lawyer who has also taught criminal and international law at Oxford University, Northwestern and the University of Chicago, and who co-chairs the ABA’s Global Anti-Corruption Task Force (here), formally presented a proposed Resolution, which was supported by the current and incoming Chairs of the ABA Criminal Justice Section, to more than 40 ABA Section Council Members. 

By its terms, the draft Resolution calls for targeted reform of the FCPA in an effort to increase the statute’s transparency and fairness, to remove specific areas of textual ambiguity, and to, in so doing, provide the world’s business community with more nuanced mapping of the FCPA’s scope and applicability.  The Resolution, for example, calls on Congress to provide a definition for the term “instrumentality [of a foreign government],” to consider a UK Bribery Act-style compliance defense to protect companies against the difficult-to-control acts of rogue employees/transaction partners, and to limit criminal liability based on theories of successor liability. 

Although the Resolution applauds the work done by DOJ and the SEC to ensure that anti-corruption laws are taken seriously and to lead the global push for greater anti-corruption compliance, it warns of the danger that, because of the FCPA’s loose drafting, it lends itself to being transformed from a criminal proscription carrying moral condemnation to a public welfare offense less likely to deter future misconduct, and with more limited focus on punishing the truly “guilty mind.”  The draft Resolution asks the US Congress for certain FCPA amendments that have resonated with the US and international business community. 

Deputy Chief of DOJ’s Criminal Division and the head of DOJ’s FCPA Unit, Charles Duross, personally appeared to debate the draft Resolution with Funk.  Following the wide-ranging discussion, which lasted over an hour, the Council tabled a vote on the matter until early next year, asking Funk and Duross to work together to provide the Council additional background information so that both sides of the discussion are fully elaborated on. 

Funk declined to discuss the details of the pending draft Resolution, but said that “this is a key public policy debate, and one I am honored to have been asked to help lead through the Resolution and by advancing the discussion on behalf of the business community.   What we are involved in is an honest, good-natured disagreement over statutory drafting, criminal law theory, and public policy questions.  I look forward to working with Mr. Duross and his colleagues to continue the constructive dialogue.  I am certain that together we will provide the ABA Council members with the information and arguments needed to render a full and informed decision on this important issue of great concern to the public, my clients, and the world’s business community.”

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