A Foreign Corrupt Practices Act Narrative

Abstract

This article, part of an annual series, weaves together Foreign Corrupt Practices Act and related developments from 2013 into a coherent narrative of value to anyone who seeks an informed base of knowledge regarding the FCPA, its enforcement, and related legal and policy issues. Specifically, this article uses FCPA enforcement action data to highlight perennial issues associated with this new era of FCPA enforcement and otherwise discusses top FCPA or related developments from 2013. Although this article focuses on one statute and its enforcement, reference is made throughout to other significant developments in 2013 relevant to the FCPA as such references best facilitate an appreciation for many of the controversial aspects of FCPA enforcement.

Part I of this article highlights various FCPA enforcement statistics from 2013 and places the statistics in a proper and historical perspective.

Part II of this article uses certain statistics to highlight perennial issues associated with this new era of FCPA enforcement. The following issues will be discussed: (i) the prominent role non-prosecution, deferred prosecution agreements, and administrative settlements have in corporate FCPA enforcement and how criticism of these resolution vehicles continues to mount; (ii) the wide gap between corporate and individual FCPA enforcement actions and a relevant data point that helps explain the gap; and (iii) how the financial consequences of corporate FCPA scrutiny and FCPA enforcement continue to rise, how FCPA settlement amounts have come a long way in a short amount of time, and how certain excesses have come to define FCPA scrutiny.

Part III of this article highlights other top FCPA or related developments from 2013 and uses these developments to spotlight the following issues: (i) certain alarming enforcement actions and why anyone who values the rule of law should be concerned by these actions; (ii) actual judicial scrutiny of FCPA enforcement agency theories as well as how non-FCPA legal developments should cause pause as to certain FCPA enforcement theories; (iii) FCPA enforcement agency speeches and policy positions; and (iv) certain uncomfortable truths and double standards regarding the U.S. fight against bribery and corruption.

Keywords: FCPA, Foreign Corrupt Practices Act