This month’s FCPA Professor Apple Award goes to …

Andrew Ross Sorkin.  Writing in his column at the New York Times DealBook in the aftermath of JPMorgan’s FCPA scrutiny for allegedly hiring family members of alleged Chinese “foreign officials,” Sorkin writes:

“But hiring the sons and daughters of powerful executives and politicians is hardly just the province of banks doing business in China: it has been a time-tested practice here in the United States.”

After citing various examples of companies hiring family members of U.S. officials, Sorkin states:

“In Washington, the line between lobbying and bribery is not clear-cut. Until 2008, R. Hunter Biden, son of then-Senator Joseph R. Biden Jr., lobbied Congress regularly. The Washington Post reported last year that “56 relatives of lawmakers have been paid to influence Congress” since 2007. While the House and Senate passed rules to limit some lobbying, the House left enough wiggle room for parents and children of lawmakers to still lobby. There is a conversation to be had about how unseemly this might appear.”

In some circles (see here), Sorkin has been harshly criticized for his comments.

However, Sorkin’s comments resonated with me.   For years I have highlighted the double standard (see here for approximately 20 posts) between enforcement of the U.S. domestic bribery statute (18 USC 201) and the FCPA.

The uncomfortable truth is that there is little intellectual or moral consistency between enforcement of the FCPA and 18 USC 201 despite the fact that these statutes have very similar elements.  Why should corporate interaction, direct or indirect, with a “foreign official” be subject to greater scrutiny and different standards of enforcement than corporate interaction, direct or indirect, with a U.S. official?

As noted in this article, in this new era of FCPA enforcement those subject to the FCPA have been frequently reminded that ‘‘we in the United States are in a unique position to spread the gospel of anti-corruption, because there is no country that enforces its anti-bribery laws more vigorously than we do.’’  We have been told that FCPA enforcement is “our way of ensuring not only that the [enforcement agencies are] on the right side of history, but also that it has a hand in advancing that history.”

However, Sorkin’s column once again highlighted the burning question – are we indeed in a “unique position to spread the gospel of anti-corruption”?

[The FCPA Apple Award recognizes informed, candid, and fresh thought-leadership on the Foreign Corrupt Practices Act or related topics.  There is  no prize, medal or plaque awarded to the FCPA Professor Apple Award recipient.  Just recognition by a leading FCPA website visited by a diverse group of readers around the world. There is no nomination procedure for the Apple Award.  If you  are writing something informed, candid and fresh about the FCPA or related topics, chances are high that I will find your work during my daily searches for FCPA content.]