Dan Seltzer (
This post poses a number of questions to Seltzer in an effort to understand some of his assertions and commentary.
Can you provide the number of “FCPA-like” enforcement actions the U.K., France, and Switzerland have each brought over the last decade?
Can you identify any “FCPA-like” enforcement action ever brought by the Attorney General of California. (Note: not an “FCPA-like” action brought by a private plaintiff, but an “FCPA-like” action brought by the State of California). More broadly, can you identify any “FCPA-like” enforcement action ever brought by any state?
Please elaborate why you think “former DOJ and SEC lawyers [are going to aid] these [foreign] regulators in a formal or informal capacity” in bringing bribery and corruption enforcement actions?
Please elaborate why you think “former DOJ and SEC lawyers who live in California who do have substantial expertise in these matters, … could be recruited formally or informally to support [the State of California’s] efforts?
Please identify the “well-established body of [FCPA] caselaw” you refer to? Elsewhere you refer to the “body of caselaw that supports [the FCPA].” Other than perhaps one appellate court decision on a specific FCPA issue, please identify the “body of caselaw” that supports various aspects of expansive FCPA enforcement? Indeed, elsewhere you state “almost all FCPA matters result in negotiated settlements.”
Describe what you mean by “effective corruption enforcement.”? In the last 10 years, the average number of DOJ corporate FCPA matters has been seven. Is this “effective” corruption enforcement? When the DOJ uses an NPA, DPA, or declination with disgorgement, is this “effective corruption enforcement”? Is the fact that approximately 75% of DOJ corporate enforcement actions lack any related individual charges evidence of “effective corruption enforcement”?
You mention the FCPA as a “global gold standard.” Are you referring to the statute or how it is enforced? If the later, how are resolution vehicles which generally bypass meaningful judicial scrutiny a “global gold standard”? How is the absence of individual charges in connection with approximately 75% of DOJ corporate enforcement actions a “global gold standard.”?
Please explain your statement that “foreign bribery laws are written broadly to sweep up as much conduct as possible.”? In regards to the FCPA, the opposite is true. The FCPA’s anti-bribery provisions have several specific elements, a statutory exception, and affirmative defenses. Moreover, the FCPA’s legislative history is clear that Congress intended, acknowledged, and accepted that it was passing a law that was capable of capturing only certain conduct, but not other conduct occurring in the global marketplace.
You state a fear “that many companies will choose not to disclose.” While actual statistics on this issue are impossible to calculate, it seems that many companies have chosen not to disclose over the last 10-15 years and several former DOJ and SEC enforcement officials have stated that disclosure is not necessary in many instances. In short, is your current fear “that many companies will choose not to disclose” the same as prior “fears” on this issue?
Please elaborate on the following statement. “Even where a company makes a sincere effort to remediate matters internally, there is not the same degree of objectivity and expertise that comes from working with an experienced regulator to evaluate the appropriateness of a company’s response.” Are you suggesting that when a company hires an experienced FCPA law firm to remediate potential FCPA issues internally, that this is less effective than when the DOJ is involved? Many FCPA enforcement attorneys at the DOJ – prior to their government position – had little to no FCPA experience and are in their DOJ positions for a few years and leave. What makes this typical DOJ FCPA enforcement attorney “experienced”?
You state – “more enforcement of anticorruption laws is almost invariably a good thing.” Are you prioritizing quantity of enforcement (regardless of enforcement theory, regardless of resolution vehicle) over quality of enforcement?
