Looking Back At The Senate’s FCPA Hearing
Seven years ago this week, the Senate held a hearing titled “Examining Enforcement of the Foreign Corrupt Practices Act.”
(See here for the full hearing transcript, here for the video).
It was the first congressional hearing on the FCPA during its new era of enforcement (to be followed by a June 2011 FCPA hearing in the House) and the first FCPA hearing in Congress since the FCPA was amended in 1998.
SEC Co-Director Of Enforcement Peikin Reflects On The Past, Present, And Future Of The SEC’s Enforcement Of The FCPA
Earlier today, Steven Peikin (Co-Director of the SEC’s Enforcement Division) delivered this speech at a Foreign Corrupt Practices Act / OECD Convention Anniversary Conference held at NYU School of Law. This post excerpts portions of Peikn’s remarks.
But first a few comments.
In talking about the past, I wonder if Peikin is even aware of the following historical fact. As highlighted in the article “The Story of the Foreign Corrupt Practices Act,” the SEC never wanted any role in enforcing the FCPA’s anti-bribery provisions. However, congressional leaders at the time of the FCPA’s enactment had a high level of distrust with the Justice Department and insisted, against the SEC’s objections both when the FCPA was enacted in 1977 and when it was first amended in 1988, that it play a role in enforcing the FCPA’s anti-bribery provisions.
FCPA At 40 Events
This previous post highlighted a keynote address by Jay Jorgensen (Walmart Executive V.P. and Global Chief Ethics and Compliance Officer) delivered at The FCPA at 40 symposium hosted by Texas A&M University School of Law on October 12th. I will be publishing a paper “Has the FCPA Been Successful In Achieving Its Objectives?” in the Texas A&M Law Review and the answer to the question depends on the meaning of success, and even then, is complicated given that certain forms of success are near impossible to measure.
The remainder of this post highlights another recent FCPA at 40 event including comments from Jack Blum (a key staff member for Senator Frank Church’s Subcommittee during the investigation that helped to instigate the FCPA’s enactment) and Stanley Sporkin (SEC Director of Enforcement during the mid-1970’s when Congress was investigating the so-called foreign corporate payments problem). In addition, the post highlights additional FCPA at 40 events over the next 10 days.
On The Intersection Of Antitrust Enforcement And Corruption
Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.
Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.
The Many Contradictions In The DOJ’s FCPA Statutory Interpretation Positions
Given the paucity of contested DOJ Foreign Corrupt Practices Act enforcement actions, it is rare for the DOJ to publicly articulate its FCPA statutory interpretation positions.
But when this does occur, the DOJ frequently takes contradictory and inconsistent positions.
Counsel representing defendants in contested FCPA enforcement actions would be wise to analyze this dynamic and this dynamic represents yet another reason why more business organizations and individuals under FCPA scrutiny should put the DOJ to its burden of proof.