Some think – or at least I’ve been told – that certain of my Foreign Corrupt Practices Act views are controversial or out of the “main stream” (whatever the “main stream” actually is or means).
For instance, recently I was a guest on a podcast (publication forthcoming) about FCPA enforcement activity and was told I have a “different” view than some on the amount of enforcement activity in recent years. I really didn’t know what to say other than that my views are factual and based on real data (see here for instance).
Regardless and more broadly, one of the interesting things about writing about the FCPA and related issues on a daily basis is that often a former FCPA enforcement official says the same thing about issues I was writing about years prior.
This recent podcast features former DOJ FCPA Unit Chiefs Mark Mendelsohn, Charles Duross, and David Last (all of whom are now in private practice with an FCPA focus). In the podcast, the former FCPA Unit Chiefs “discuss their time as Chiefs of the FCPA Unit and their experiences navigating heightened scrutiny and shifting resources, and then they offer their perspectives on what lies ahead.”
It is an interesting listen on a variety of topics – including the topic mentioned at the beginning of the post.
For instance, Mendelsohn (whose law firm bio states that he is “internationally acknowledged and respected as the architect and key enforcement official of DOJ’s modern Foreign Corrupt Practices Act (FCPA) enforcement program) says that the DOJ “introduced creativity” to FCPA enforcement and compliance and that a lot of what DOJ did was “smoke and mirrors for a while.”
For a long time, I have suggested that former DOJ (and SEC) FCPA enforcement officials with supervisory and discretionary authority be prohibited for a certain time period from providing FCPA defense or compliance services upon leaving government service. The rationale for this position is that FCPA enforcement is unique and very few people actually impact enforcement and related issues.
On this issue, Duross commented that “if you step back and think about the impact that 3-5 people up to now maybe 15 people” have had on FCPA enforcement and related issues “the outsize impact is significant.” Duross further stated:
“what makes the FCPA particularly unique it is as far as I know the only statute that must be done by a single component of the department – which is the fraud section – which is required to be involved. If you had a case that involved wire fraud, insider trading, accounting fraud, … bank fraud, money laundering, all of that could be done by any one of the 90 plus U.S. attorneys offices and not all in one place.”
When you listen to the podcast about the changes to the FCPA landscape over the years (through the eyes of former DOJ FCPA Unit Chiefs) do realize that the law they are talking about (the FCPA) has not changed – one word – since 1998.
