A time for reflection, a time to think, a time to read.
If you have some downtime in these dog days of summer, put it to good use.
This post provides an overview of FCPA writings that can help you elevate your Foreign Corrupt Practices Act knowledge, sophistication, and practical skills.
“The Foreign Corrupt Practices Act in a New Era”
This book is the most comprehensive and candid book written about the FCPA. The book dissects the FCPA’s new era and readers from the boardroom, to the courtroom, to the classroom will benefit from the nine chapters of the book which place the FCPA’s new era in context and provide a practical and provocative analysis of the FCPA, its enforcement, and related topics.
To see what others are saying about the book see here, here, here and here.
To order a hard copy of the book, see here and here; to order an e-copy of the book, see here and here.
“The Story of the Foreign Corrupt Practices Act”
This article, published on the FCPA’s 35th anniversary, is the most extensive piece written about the history of the FCPA and it weaves together information and events scattered in the FCPA’s voluminous legislative record to tell the FCPA’s story through original voices of actual participants who shaped the law. To download the article, click here.
“Ten Seldom Discussed FCPA Facts That You Need To Know”
Much is written about the Foreign Corrupt Practices Act. However, amid the clutter of enforcement agency rhetoric and resolution documents not subjected to any meaningful judicial scrutiny as well as the mountains of FCPA Inc. marketing material touting the next compliance risk, there are certain FCPA facts that are seldom discussed. Yet such facts, covering the entire span of the FCPA — from the statute’s enactment, to its statutory provisions, to FCPA enforcement, to FCPA reform, to the FCPA industry itself — occasionally bear repeating. This article does that by highlighting ten seldom discussed FCPA facts that you need to know. To download the article, click here.
“A Common Language to Remedy Distorted FCPA Enforcement Statistics”
This article guides readers (using specific examples) through how various FCPA Inc. participants use creative and haphazard counting methods that infect the quality and reliability of FCPA enforcement and related statistics of interest to many in the legal and business communities. After exposing distorted FCPA enforcement statistics, the article proposes a FCPA common language that can improve the quality and reliability of FCPA statistics and thus allow a more cogent conversation to take place regarding FCPA issues. To download the article, click here.
“Measuring the Impact of NPAs and DPAs on FCPA Enforcement”
This article demonstrates that alternative resolution vehicles have become the dominant way the DOJ resolves corporate FCPA scrutiny and serve as an obvious reason for the general increase in FCPA enforcement over the past decade. To the many cheerleaders of increased FCPA enforcement, NPAs and DPAs are thus worthy of applause. Yet in a legal system based on the rule of law, quality of enforcement is more important than quantity of enforcement. Through empirical data and various case studies, this article measures the impact NPAs and DPAs have on the quality of FCPA enforcement and concludes that NPAs and DPAs — while resulting in higher quantity of FCPA enforcement — result in lower quality of FCPA enforcement. To download the article, click here.
“Foreign Corrupt Practices Act Ripples”
The most extensive article written about the negative business effects of FCPA scrutiny and enforcement beyond actual enforcement actions. The Article shifts the FCPA conversation away from a purely legal issue to its more proper designation as a general business issue that needs to be on the radar screen of business managers operating in the global marketplace. The article assists in-house counsel and compliance professionals stress the importance of FCPA compliance by highlighting issues that matter most to corporate leaders. To download the article, click here.
“Revisiting a Foreign Corrupt Practices Act Compliance Defense”
This article asserts that the current FCPA enforcement environment does not adequately recognize a company’s good faith commitment to FCPA compliance and does not provide good corporate citizens a sufficient return on their compliance investments. To download the article, click here.
“The Facade of FCPA Enforcement”
The 2010 article began a much-needed discussion of various aspects of FCPA enforcement, analyzes various pillars that contribute to the facade of FCPA enforcement, and highlights that the FCPA, in its so-called new era, is being enforced like no other law. To download the article, click here.
“The Uncomfortable Truths and Double Standards of Bribery Enforcement”
This Article explores through various case studies and examples whether the United States’s crusade against bribery suffers from uncomfortable truths and double standards. Through these case studies and examples, readers can decide for themselves whether the U.S. government “practices what it preaches” when it comes to the enforcement of bribery laws and whether the United States is indeed “in a unique position to spread the gospel of anti-corruption.” To download the article, click here.
“Grading the DOJ’s FCPA Pilot Program”
In 2016, the DOJ issued a policy document titled “The Fraud Section’s FCPA Enforcement Plan and Guidance.” The document outlined various steps in the DOJ’s “enhanced FCPA enforcement strategy” including a “pilot program” intended to “encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered or disclosed to law enforcement.” This article grades the pilot program by addressing the following issues: the obvious logical gap in the pilot program; how the pilot program, both in terms of rhetoric and substance, is really nothing new; why the corporate community should take the pilot program with a grain of salt; and how the pilot program falls short of accomplishing the laudable goals articulated by the DOJ compared to other alternatives previously advanced. To download the article, click here.
“Grading the Foreign Corrupt Practices Act Guidance”
This article analyzes the FCPA Guidance released by the DOJ and SEC in 2012. Among other things, the following topics are discussed: (i) the enforcement agencies’ motivations in issuing the Guidance and the fact that it should have been issued years ago; (ii) the utility of the Guidance from an access-of-information perspective and how the Guidance can be used as a measuring stick for future enforcement agency activity; and (iii) how the Guidance is an advocacy piece and not a well-balanced portrayal of the FCPA as it is replete with selective information, half-truths, and, worse information that is demonstratively false. To download the article, click here.
“Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart’s Potential Exposure”
What does the most high-profile instance of FCPA scrutiny in history tells us about the current FCPA enforcement environment? Quite a lot actually. To download the article, click here.
“JPMorgan – A Trifecta of Off-The-Rails FCPA Enforcement”
The FCPA has specific elements that must be met in order for there to be a violation. However, with increasing frequency it appears that the Department of Justice and Securities and Exchange Commission have transformed FCPA enforcement into a free-for-all corporate ethics statute in which any conduct the enforcement agencies find objectionable is fair game to extract a multi-million dollar settlement from a risk-averse corporation. An example is the $202.6 million FCPA enforcement action against JPMorgan Chase & Co. based on alleged improper hiring and internship practices in the Asia-Pacific region. After discussing the main features of the problematic enforcement action, the article highlights why the SEC’s enforcement action finding violations of the FCPA’s anti-bribery, books and records and internal controls provisions represents a trifecta of off-the-rails FCPA enforcement and why anyone who values the rule of law should be alarmed. To download the article, click here.
“What Percentage of DOJ FCPA Losses is Acceptable?”
Bringing criminal charges and marshalling the full resources of law enforcement against an individual is an awesome power that our government possess. Because that power alters the lives of real people and their families, sidetracks real careers, empties real bank accounts in mounting a defense, and causes often irreversible damage to real reputations, it ought to be exercised with real discipline and prudence. It is fact that during this new era of FCPA enforcement the DOJ has an overall losing record in FCPA enforcement actions when actually put to its ultimate burden of proof and this article poses the question: what percentage of DOJ FCPA losses is acceptable? To download the article, click here.
In addition to the above articles, each year I publish an extensive FCPA year in review. Put them all together and you will have an extensive collection of FCPA statistics, trends, and analysis over time.
For 2016, see here.
For 2015, see here.
For 2014, see here.
For 2013, see here.
For 2012, see here.
For 2011, see here.
For 2010, see here.
For 2009, see here.