The FCPA Files: What Can We Learn From Old Cases?
The FCPA will turn fifty in a few years, giving rise to the inevitable host of celebrations and retrospectives. But we don’t need to wait until then for an overview of the past. With hundreds of enforcement actions since the law became effective in December 1977—some of them famous and extensively scrutinized, others rarely discussed—there is a lot we can still learn. At the same time, certain older cases once considered groundbreaking may now appear at best quaint, at worst irrelevant.
At the outset, we ought to have some idea what we’re looking for—the kind of value we might hope to find. There are at least three ways an FCPA case may—or may not—be considered interesting.
First, a case can be read as precedent. Most business-bribery matters are, of course, resolved by settlement rather than litigation, so binding appellate decisions are rare. But the stated reasons for a given case’s pursuit can tell us a lot: the activities found problematic, the precautions deemed inadequate, the penalties considered appropriate: all vital information for designing an effective compliance program or addressing an unfortunate lapse.
These facts are typically what’s laid out in settlement documents, but they may not reveal much about what really went wrong within an organization. We need a second level of analysis, more along the lines of a case study. Who were the main players? What kind of advantage were they trying to gain? How did the company’s structure and practices facilitate the scheme—or hinder it? What about the government connection: when it arose, how the parties knew each other, whether it reflected a broader pattern of official behavior. These details may or may not be legally relevant, but a more complete narrative can allow for deeper comparison to other business situations.
There’s one more aspect to these cases we might examine. The FCPA wasn’t enacted in a vacuum, and its enforcement isn’t detached from history. The economic and political conditions in which transnational business bribery occurs are varied and evolving. Understanding them can give us a valuable perspective on the significance of our own circumstances. While a detailed treatise is beyond the scope of a series of short blog posts, a close reading can uncover salient and evocative details that can help situate our own compliance efforts. Let’s dive in and see what’s there.
This post is part of "The FCPA Files" series, examining key enforcement cases under the Foreign Corrupt Practices Act and the lessons they offer for modern compliance. |