Any time an article title contains a word I have never used, don’t know how to pronounce, and have to “look up” to understand its meaning, I am automatically skeptical that the article will provide anything of value. But then again, perhaps my vocabulary is deficient.

Looking up the word “endogeneity” really didn’t even help, but apparently it is a term in econometrics (whatever that term means) that “broadly refers to situations in which an explanatory variable is correlated with the error term.”

Word choice aside, a recent article titled “The Compliance Game: Legal Endogeneity in Anti-Bribery Settlement Negotiations” by Branislav Hock and Elizabeth David-Barrett caught my eye.

The article doesn’t exactly chart new ground. For instance, many of the issues were touched upon in my 2010 article The Facade of FCPA Enforcement and several others have touched upon the same general topics since. Nevertheless, the article attempts to analyze and access what happens during negotiations between counsel and the government leading up to an FCPA (or related) enforcement action.

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For nearly a decade, these pages have called for restrictions when DOJ / SEC FCPA enforcement attorneys with supervisory and discretionary authority leave the government for private practice careers devoted to the FCPA. (See here, here, here and here among other posts).

I was thus happy to see that the Coalition for Integrity (“C4I” – a non-profited devoted to combating corruption and promoting integrity in the public and private sectors) recently called for post-employment restrictions on DOJ and SEC FCPA enforcement attorneys who leave for private practices in this policy paper submitted to the OECD in connection with its Phase 4 Evaluation of the U.S. Implementation of the OECD Anti-Bribery Convention.

It is a bit ironic though as C4I has several individuals on its Board of Directors who left the DOJ / SEC for lucrative positions in FCPA Inc. including an individual who still describes himself as “the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program.”

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