Archive for the ‘FCPA Scholarship’ Category

“The FCPA In A New Era” Continues To Generate A Buzz

Wednesday, September 10th, 2014

New EraMy new book “The Foreign Corrupt Practices Act in a New Era” has been in the marketplace for a few months and I am grateful that it continues to generate a buzz.

Thomas Fox over at the FCPA Compliance and Ethics Blog says:

“[The book] should become one of the standard texts for any FCPA compliance practitioner, law student studying the FCPA or anyone else interested in anti-bribery and anti-corruption. It should be on your FCPA library bookshelf.”

In addition, I recently chatted with Fox about the book during a two-part Q&A podcast on FCPA Compliance and Ethics Report. See here for Part I and here for Part II.  (As noted in the introduction of both parts, a technical glitch makes it difficult to hear Fox, but you can hear my responses just fine).

Over at thebriberyact.com, the headline reads “buy it” and the review states:

“Mike Koehler’s new book is probably the best book we’ve read about the FCPA. [...] For those wanting a pair of ‘FCPA goggles’ no book is, in our opinion, better.”

As previously noted in this post, here is what others are saying as well about the book.

Michael Mukasey (Former U.S. Attorney General – Partner, Debevoise & Plimpton)

“Professor Mike Koehler has brought to this volume the clear-eyed perspective that has made his FCPA Professor website the most authoritative source for those seeking to understand and apply the FCPA.  This is a uniquely useful book, laying out systematically the history and rationale of the FCPA, as well as its evolution into a structure governed as much by lore as by law.  It will be valuable both to those who counsel international corporations, whether in connection with immediate crises or long-term strategies; and to those who contemplate what the FCPA has become, and how it can be improved.”

Richard Alderman (Former Director of the UK Serious Fraud Office)

“An excellent and thought-provoking book by a great expert. Backed up by rigorous analysis of cases, Professor Koehler constantly challenges those involved in anti-corruption work by asking the question “why?” He puts forward many constructive and well-argued suggestions for improvements that need to be considered. I have learned a lot from Professor Koehler over the years and I can thoroughly recommend this book.”

Daniel Chow (Professor of Law, The Ohio State University Moritz College of Law)

“This is the single most comprehensive academic treatment of the Foreign Corrupt Practices available. Professor Koehler’s book will become the authoritative standard for the field. The book not only treats the history of the FCPA, but analyzes the statute’s elements in detail, discusses current cases, and makes proposals for reforms where the current law is deficient. The book is written in a clear, accessible style and I will use it often as a resource for my own scholarly work.”

For media coverage of the book including Q&A’s, see here from Corporate Counsel, here from Global Investigations Review; here from Corporate Counsel Weekly; here from Corporate Crime Reporter; and here from Thomson Reuters. (Note, I have no input as to the title of the articles).

To order a hard copy of the book, see here and here; to order an e-copy of the book, see here and here.

Are You Ready For Some Football? How A Successful Football Organization Can Inform FCPA Compliance In A Business Organization

Thursday, September 4th, 2014

FBAre you ready for some football? The answer is likely yes as the football season is arguably the most anticipated sports season and one that transforms the weekends of many.

For Foreign Corrupt Practices Act compliance practitioners, understanding the game is not just a professional diversion, but one that can actually add professional value as well.  The reason is because understanding what makes a football organization successful can also inform FCPA compliance in a business organization.

In the spirit of the season, my recent article in Bloomberg BNA’s White Collar Crime Report titled “How a Successful Football Organization Can Inform FCPA Compliance In a Business Organization” highlights four attributes of a successful football organization that can also elevate FCPA compliance in a business organization.

Click here to download the article.

Gifts And The “Bribery Gaze”

Wednesday, September 3rd, 2014

[I originally published this post as a book review on Criminal Law and Criminal Justice Book (a joint project of Rutgers School of Law-Newark and Rutgers School of Criminal Justice) and it is republished below with permission.]

Throughout human history, gifts have been a respected and legitimate form of gratitude and generosity, serving as a social glue important to any cohesive society. Yet at the same time, gifts have been offered to seek influence, have compromised the integrity of the gift recipient, and have thus represented a form of bribery.

These divergent realities are the subject of Professor Malin Akerstrom’s engaging new book “Suspicious Gifts.” Professor Akerstorm, a Swedish sociologist by discipline, examines the everyday dilemmas faced by low-level professionals working in the public sector and the business persons who interact with such public officials to chart the ambiguity between legitimate gifts and illegitimate bribery.

Acknowledging the corrupting power of gifts, Professor Akerstrom is nevertheless critical of contemporary anticorruption efforts that seemingly label all gifts as blameworthy or even criminal. Invoking the phrase the “bribery gaze” on a number of occasions, Professor Akerstorm highlights the following warnings found in anti-corruption literature.

  • When you want to display hospitality – it could be bribery!
  • When you want to be generous – it could be bribery!
  • When you want to be friendly – it could be bribery!
  • When you take self-promoting measures – it could be corrupt marketing!
  • When you allow yourself to be invited – it could be a bribe!
  • When you accept a present or prize – it could be a bribe!
  • If you don’t say no thanks or decline a perk in time – it could be corruption!

These circumstances, of course, are not academic, but present in real-world bribery enforcement actions. While the Swedish examples Professor Akerstrom highlights may be foreign to most readers outside of that region, gifts are also frequently alleged as bribes in U.S. Foreign Corrupt Practices Act enforcement actions. For example, recent FCPA enforcement actions have involved: flowers, cigarettes, bottles of wine; karaoke bars; and tea sets.

As Professor Akerstrom rightly notes however, the current “bribery gaze,” in which everything seems to be transformed into a hazard, a trap or criminal bribery, is not without social and public policy consequences. She persuasively argues:

“Campaigns to eliminate these gift exchanges are at the same time campaigns to restrict the gamut of courtesy or ritual exchanges. The manifestations of courtesy, gratitude, and social bonds, which are so important as social glue in any cohesive society, are not just called into question, but criminalized.”

In this new era of enforcement of bribery and corruption laws, many are pounding the table for more enforcement, as if the quantity of enforcement was an inherent good regardless of enforcement theories, resolution vehicles, or collateral social and public policy considerations.

Regarding gifts as a form of bribery, Professor Akerstorm asks, “should the ideal society be gift-less?” With the current “bribery gaze,” expanding theories of enforcement, and risk-averse business organizations responding by eliminating most forms of gratitude and generosity, this appears to be where the winds are blowing.

Yet in “Suspicious Gifts” Professor Akerstorm reminds those in the anti-corruption space – whether practitioner, policy-maker or scholar – that bribery and corruption is seldom the simple and safe issue it appears to be at first blush.  

Summer FCPA Reading List

Thursday, August 21st, 2014

The dog days of summer.  A time for reflection, a time to think, a time to read.

In this post, I provide an overview of my 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”

My new book “The Foreign Corrupt Practices Act in a New Era” 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 and here.

The first print of the book sold-out, but additional copies are now available.  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 Facade of FCPA Enforcement”

According to available metrics, “The Facade of FCPA Enforcement” is the most downloaded article written about the FCPA. 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 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.

“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.

“Grading the Foreign Corrupt Practices Act Guidance”

A critical analysis of the FCPA Guidance released by the DOJ and SEC in November 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.

“Why You Should Be Alarmed by the ADM FCPA Enforcement Action”

Certain FCPA enforcement actions should legitimately cause many to wonder whether the enforcement agencies have transformed FCPA enforcement into a free-for-all in which any conduct the agencies find objectionable is fair game to extract a multimillion-dollar settlement from a risk-averse corporation. This article highlights why anyone who values the rule of law should be alarmed by the ADM enforcement action.  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 2013, see here.

For 2012, see here.

For 2011, see here.

For 2010, see here.

For 2009, see here.

To read my Senate FCPA testimony click here to download, and to see a full listing of all my FCPA writings click here.

Thanks for reading!

New Article – “Foreign Corrupt Practices Act Ripples”

Tuesday, July 15th, 2014

RippleIn house counsel and other compliance professionals are often looking for additional ways to stress the importance of Foreign Corrupt Practices Act compliance to corporate leaders. A common way to do this is forwarding to corporate leaders the latest multi-million dollar settlement with the message “this could be us” if we don’t invest in and implement FCPA compliance best practices.

This common method however often fails to resonate with corporate leaders. Moreover, settlement amounts in an actual FCPA enforcement action are often only a relatively minor component of the overall financial consequences that can result from FCPA scrutiny or enforcement in this new era.

To be most effective in communicating with corporate leaders regarding the need for pro-active FCPA compliance, in house counsel and other compliance professional need to speak to corporate leaders in business terms that matter such as liquidity, market capitalization, cost of capital, lost or delayed business opportunities and the like.

My new article, “Foreign Corrupt Practices Act Ripples” (available for download here), recently published in the American University Business Law Review, assists in house counsel and compliance professionals stress the importance of FCPA compliance by highlighting issues that matter most to corporate leaders.

The article abstract is as follows.

An obvious reason to comply with the Foreign Corrupt Practices Act (“FCPA”) is that non-compliance can expose a company to a criminal or civil FCPA enforcement action by the Department of Justice (“DOJ”) and/or the Securities and Exchange Commission (“SEC”). However, this Article highlights that settlement amounts in an actual FCPA enforcement action are often only a relatively minor component of the overall financial consequences that can result from FCPA scrutiny or enforcement in this new era.

By coining a new term of art – the “three buckets” of FCPA financial exposure – and through various case studies and examples, this Article demonstrates how FCPA scrutiny and enforcement can impact a company’s business operations and strategy in a variety of ways from: pre and post-enforcement action professional fees and expenses; to market capitalization; to cost of capital; to merger and acquisition activity; to impeding or distracting a company from achieving other business objectives; to private shareholder litigation; to offensive use of the FCPA by a competitor or adversary to achieve a business objective or to further advance a litigating position.

This Article thus 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. By highlighting the many ripples of FCPA scrutiny and enforcement, it is hoped that more business managers can view the importance of FCPA compliance more holistically and not merely through the narrow lens of actual enforcement actions.

Help shift the FCPA conversation by sharing the article (available for download here) with your clients, corporate boards, audit committees and other corporate leaders.