FCPA Inc. Desperately 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.
Most mature niche industries have basic standards (a common language if you will) concerning basic issues relevant to the industry. However, FCPA Inc. has none and it resembles the wild west in many instances.
Consider the following basic question: how many corporate enforcement actions were there last year and how much money did the U.S. government collect in those enforcement actions? As highlighted below, certain FCPA Inc. participants have answered this question four different ways.
Do Corruption Rankings Actually Tell You Things You Don’t Already Know?
For many years, Transparency International’s Corruption Perception Index (CPI) was the only game in town. (See here for why compliance professionals should take the CPI with a grain of salt).
But with each passing year it seems, there are other attempts to measure corruption and a sort of corruption index competition has developed. In other words, my corruption index is better than your corruption index and here are the reasons why.
For instance, this recent FCPA Blog post is titled “Not All Corruption Indexes Are Created Equal” and like much of what appears on the FCPA Blog the post is written by a person pushing their own organization’s product or service offering.
Is This Appropriate?
Gibson Dunn is generally viewed as having a top tier Foreign Corrupt Practices Act practice.
The firm’s Year-End FCPA Update is always a quality read including this year’s version.
Yet, highlighted below is a paragraph from the Update that caught my eye and I ask: seriously – is this appropriate?
Early in the 36-page document is the following paragraph:
An FCPA Statistical Feast
If the Foreign Corrupt Practices Act is an area of your practice or interest, this post may make you feel like a kid in a candy store.
With much rhetoric floating around regarding the FCPA and with many creative and haphazard counting methods employed by certain FCPA Inc. participants, it is instructive to take a look at actual statistics using accurate and consistently applied math.
FCPA Professor has been the place to visit this month for in-depth 2017 FCPA enforcement statistics as well as comparisons to historical statistics. If you missed the daily posts, no worries. This post consolidates in one place the statistics recently published on FCPA Professor.
FCPA Enforcement Actions Against Foreign Companies From OECD Convention Peer Countries
As highlighted in this post, like prior years (see here) much of the largeness of 2017 FCPA enforcement resulted from corporate enforcement actions against foreign companies.
Specifically, of the 13 corporate enforcement actions from 2017, 5 (approximately 40%) were against foreign companies (based in many instances on mere listing of securities on U.S. markets and in a few instances on sparse allegations of a U.S. nexus in furtherance of an alleged bribery scheme). Even more dramatic, of the net $1.13 billion FCPA settlement amounts from 2017 corporate enforcement actions, approximately 90% of this number was from enforcement actions against foreign companies.