March Madness has arrived and over the next few weeks college basketball’s contenders will rise to the top over the pretenders. Sure, a cinderella team or two may emerge – after all anything can happen in 40 minutes of basketball – but the teams that make it to the Final Four will likely share the following traits: poise, discipline, focus and a bend-but-don’t-break attitude.
In the spirit of the season ask yourself – are you a Foreign Corrupt Practices Act contender or pretender?
An FCPA contender has a firm understanding of why the FCPA was enacted and is well-versed in FCPA legislative history. If you do not know the story of the FCPA, it is here.
An FCPA contender has actually read the FCPA statute. If you have not, it can be found here (in 50 different languages).
An FCPA contender has read every substantive FCPA judicial decision, after all there are not that many. If you have not read, at a minimum, the following cases you have some work to do: U.S. v. Liebo, U.S. v. Esquenazi, U.S. v. Carson, U.S. v. Lindsey Manufacturing, SEC v. Straub, SEC v. Steffen, U.S. v. Kay, SEC v. Mattson, U.S. v. Bourke, SEC v. Jackson, U.S. v. Castle, and SEC v. World-Wide Coin.
An FCPA contender has reviewed other information and sources of guidance relevant to the FCPA such as the SEC’s 1981 guidance concerning the FCPA’s books and records and internal controls provisions (here), the DOJ’s and SEC’s 2012 FCPA Guidance (here) and DOJ FCPA Opinion Procedure Releases (here).
An FCPA contender recognizes how foreign trade barriers and distortions are often the root causes of bribery and why the absolutist position of “just don’t bribe” is an uniformed fallacy and why even good, ethically sound companies are often the subject of FCPA enforcement or scrutiny.
An FCPA contender understands how FCPA enforcement or merely FCPA scrutiny has many ripple effects (see here).
An FCPA contender is well-versed on FCPA compliance best practices and benchmarking metrics such as the FCPA Guidance, the DOJ’s Principles of Prosecution of Business Organizations, the U.S. Sentencing Guidelines, and the OECD Good Practice Guidance on Internal Controls, Ethics, and Compliance.
In this season of contenders vs. pretenders, commit to being an FCPA contender. The above sources of information are not meant to be exhaustive, but rather comprise a solid core of FCPA legal authority as well as other sources of information or knowledge.