One interesting fact about the Foreign Corrupt Practices Act hearings in Congress in 2010 and 2011 is that there was bipartisan support for certain aspects of FCPA reform.
“… I want to tell you a suggested amendment that I can support, and that is the addition of a compliance defense which would permit companies to fight the imposition of criminal liability for these FCPA violations if individual employees or agents had circumvented compliance measures that were otherwise reasonable in identifying such violations.
[L]et’s look at the clarification of foreign official and instrumentality provisions. Without a clear understanding of who is a foreign official, this could create a problem, and I think I can support that one.”
As highlighted in this 2011 post, during the hearing Conyers had a rather contentious with a witness from the National Association of Criminal Defense Lawyers).
Conyers asked – “give me some examples of overcriminalization of the FCPA.” He repeatedly interrupted the witness and asked “just give me some examples” “give me an instance of where one case was ever brought by the DOJ that would constitute overcriminalization.” Conyers stated, “only 140 cases have been brought in 10 years -that averages 14 cases a year – is that overcriminalization to you?”
The witness stated that overcriminlization occurs when a statute provides no reasonable limits and that she is concerned more about prosecutions that may occur in the future more so than prosecutions that have already occurred.
There should be plenty of concern regarding prosecutions that have already occurred, but given the glare of the cameras, the stress of testifying, and the disruption of being interrupted, it would have been difficult for any witness to retrieve from their memory bank specific FCPA enforcement actions.
The prior post provided a summer reading list of FCPA enforcement actions, commentary and analysis, and legal scholarship for Representative Conyers so that he can best seek answers to the question he posed to the witness.
I wonder if he ever completed the summer reading list?