FCPA Inc. Desparately Needs Some Basic Standards
In 2010 I coined the term “FCPA Inc.” as shorthand term used to describe a vibrant, niche industry consisting of numerous market participants and not just lawyers. Regardless of what you think of the term, FCPA Inc. has become part of the FCPA lexicon and it is undisputed that FCPA Inc. is a multi-billion dollar industry.
Yet this niche industry lacks basic standards and the lack of standards causes untold amounts of confusion. My article “A Common Language to Remedy Distorted FCPA Enforcement Statistics” focuses on the lack of standards regarding the basic issue of “what is an FCPA enforcement.”The establishment and acceptance of a common language (and standards) is a sign of maturity in many professions, yet FCPA Inc. also lacks standards for even the most basic task of assembling a list of the Top Ten FCPA Enforcement Actions.
It’s been said that a picture is worth 1,000 words and thus what follows is 3,000 words of visual proof of this troubling dynamic through reference to the recent Telia enforcement action (see here and here for prior posts).
Friday Roundup
Across the pond, the big picture, ripple, a muddy mess, to FCPA Inc., scrutiny alert, silly and erroneous, misleading, ISO 37001 related, and for the reading stack.
It’s all here in the Friday roundup.
Across the Pond
In this recent speech, David Green (Director of the U.K. Serious Fraud Office) said the U.K. Bribery Act is “regarded as a gold standard internationally” and, as further proof that so-called enforcement competition does exist, he stated:
The Selling Of FCPA Enforcement Officials Needs To Stop!
This is certainly not the first time these pages have addressed this topic and of all the topics periodically discussed on these pages, this topic has received some of the most positive feedback. As an individual on social media commented the other day when I first highlighted the most recent problematic example: “These are great points and a substantive and optics concern of many.”
For profit companies that host FCPA conferences are entitled to run their business as they see fit. However, when for profit companies use Foreign Corrupt Practices Act officials at the DOJ, SEC, and FBI like commodities that are then marketed and sold to the public, this is where the line needs to be drawn.
It’s a disgraceful practice and it needs to stop. Moreover public officials need to stop allowing themselves to be used as pawns by for profit companies.
The Political Contributions Of Various FCPA Commentators
FCPA commentators often write about the importance of transparency.
The question arises, when FCPA commentators write about topics political in nature including statements about specific political actors, should the commentator disclose their political contributions so that readers can better assess the credibility and objectivity of what the commentator is saying?
This post highlights the publicly available political contributions of various FCPA commentators.
For the record, I’ve never made a political contribution in my life.
At FCPA Sentencing, Judge Goes Off On Various Aspects Of FCPA Enforcement
While Foreign Corrupt Practices Act enforcement is largely devoid of judicial scrutiny, sentencing of individual defendants remains a judicial function and provides a rare (and often overlooked) public glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.
Sentencing transcripts not only capture advocacy moments seldom publicly seen in FCPA enforcement, but also telling unscripted comments concerning FCPA enforcement. For instance, while the enforcement agencies and others often portray bribery as a black and white issue, judges sentencing FCPA individual defendants often see shades of gray.
Several examples are highlighted in the book “The FCPA in a New Era” and another noteworthy example concerns recent remarks made by Nicholas Garaufis (Senior District Judge, E.D.N.Y. – nominated to the bench by President Clinton) in sentencing Samuel Mebiame, a Gabonese national connected to Och-Ziff who pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions in connection with African mining projects.