Are Changes to FCPA Enforcement on the Horizon?
Richard Steinberg 270004HRBG email@example.com | | Tags:  openpages compliance sec fcpa | 0 Comments | 2,611 Visits
We know the Justice Department and SEC in recent years revved up enforcement of the Foreign Corrupt Practices Act, which certainly has gotten the close and widespread attention of the business community. With the vast majority of U.S. companies large and small operating globally, general counsels, compliance officers, boards of directors, and other business executives are focusing on related risks and controls. And now the U.S. Chamber of Commerce’s Institute for Legal Reform, noting that companies want to comply with provisions of the FCPA but unclear enforcement makes it challenging, thinks "it is common sense that the rules of the road are clarified." As such, the Chamber has put forth five recommendations: Adding a compliance defense, limiting liability for the prior actions of an acquired company, adding a “willfulness” requirement for corporate criminal liability, limiting liability for acts of a subsidiary, and defining what constitutes a "foreign official."
It appeared these proposals might gain some traction, and then along came Wal-Mart. The charges of bribery in Mexico and subsequent cover-up seems to have dampened interest in modifying, or some would say softening, the FCPA and related enforcement. Certainly Wal-Mart has put tremendous effort into successfully lobbying legislators in both parties – and supporting the President’s initiatives in health coverage and pollution control, and the First Lady’s on healthy foods to combat childhood obesity – all of which may serve the company in good stead in containing political fallout. But we can also expect notoriety around the Wal-Mart case to signal the continued relevance of the Act and deflect efforts to weaken it.
It seems there’s an interesting analogy here, where the Wal-Mart bribery case might be to the FCPA what WorldCom was to Sarbanes-Oxley. After Enron imploded, there was stirring inside the Beltway about need for legislation, but nothing much was expected to happen – until a few months later when the WorldCom fiasco hit the headlines, thereby generating momentum that turned into a rush to get a law passed. In this instance, it may well be the converse – a law that might have been weakened is more likely to stay as is, with continued strong enforcement by regulators. We’ll stay tuned to see what transpires.