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Lessons Learned From …


Imagine this post was titled “Lesson Learned from the NBA Playoffs.” I hope your reaction would be – well gosh, the NBA playoffs are merely in the second round. There are nearly two full months of basketball yet to be played.

Similarly if this post was titled “Lesson Learned from the 2016 Presidential Election,” again I hope your reaction would be – well gosh, sure there have been long, often brutal primary elections, but the general election is just beginning.

So why then do many (certainly not all) Foreign Corrupt Practices Act commentators publish articles, posts, etc. on purported lessons learned when: (i) they lack first hand information concerning the specific facts or circumstances at issue, but are merely relying on second-hand accounts often by non-lawyer journalists writing a story; and/or (ii) the specific issue has merely just begun, the situation remains fluid, and the end-result is unknown?

Relevant to the FCPA and related spaces, recent weeks have witnessed news stories about Unaoil (and related companies) as well as the so-called “Panama Papers.” At this point, these events are merely news stories and to use the baseball analogy the events are in the 1st inning of a 9 inning game.  Yet, there have been many “lessons learned” type articles, etc. already about these events (see certain of the below links as examples).

Before Unaoil and the “Panama Papers,” there were many “lessons learned” articles, posts, etc. in connection with Wal-Mart’s high-profile FCPA scrutiny (which is still ongoing). (See here, here, here, here, and here among other examples – there are so, so many more links that could be provided). The “support” for the purported “lessons learned”? For the most part, a newspaper article written by a non-lawyer journalist.

Many of these “lessons learned” posts (see here, here, here, here, here, here) have appeared on a certain FCPA website which squeezes its commentary between two columns of approximately 20 moving and blinking FCPA Inc. ads. Many of these “lesson learned” posts are often written by FCPA Inc. participants who use the event to subtly market their apparent secret sauce for how the purported lesson learned can be avoided.

I am well aware (and was previously skilled) with this type of writing.

For many years when I was in private practice, my main motivation in writing on FCPA topics was to increase my practice and that of my firm. With that as the goal, every FCPA “event” presented a “hook” on which to draft a client alert or write a published article. With that as the goal, everything had a “lesson to be learned” no matter how premature or off-target those lessons might be.

To be sure, there are certain lessons to be learned from certain FCPA enforcement actions and other certain completed events in the FCPA space.

Yet, when the purported lessons learned are from uncompleted events and/or based solely on news stories written by non-lawyer journalists, those in the FCPA space need to take a deep breath and demonstrate more discipline in their commentary.

I am not holding my breath that this will happen.

Thus sophisticated observers need to start realizing (to the extent they haven’t already) what the main motivations are of many “commentators” in the FCPA space.

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