Archive for the ‘FCPA Scholarship’ Category

Friday Roundup

Friday, July 17th, 2015

Roundup2A reading stack edition of the Friday roundup.

*****

Miller & Chevalier’s FCPA Summer Review 2015 is here.

Regarding the DOJ’s latest FCPA trial court debacle in the Sigelman case (see hereherehere and here for prior posts), the review states:

“The DOJ’s prosecution and trial of Joseph Sigelman deserves special notice, as it was the DOJ’s first trial of an individual on FCPA charges since the acquittal in January 2012 of John Joseph O’Shea. Sigelman’s trial … lasted nine days and ended with prosecutors entering into a negotiated guilty plea with Sigelman on only one of the six counts with which he was charged after a key government witness admitted to lying on the stand. Sigelman’s sentence of probation with no imprisonment was essentially a victory for Sigelman, and the judge was particularly critical of the government’s key witness as well as its sentencing recommendation. The trial adds to a string of recent FCPA prosecutions involving individuals in which the government has failed to secure a conviction or its recommended sentence, highlighting the difficulties the DOJ has sometimes encountered when forced to bear its burden of proof in court.”

*****

Relevant to the double standard issues frequently highlighted on these pages, one interesting side note to come out of the Sigelman trial was testimony about the alleged “commonplace” practice among certain law firms of providing expensive tickets to high-profile sporting events to corporate clients.   (See here from Bloomberg).

Do that with certain other clients or potential clients and the DOJ/SEC would be apt to call that bribery.

*****

My Southern Illinois University School of Law colleague Lucian Dervan co-authored an article with Ellen Podgor (White Collar Crime Prof Blog) titled “White Collar Crime: Still Hazy After All These Years.” The abstract states:

“With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under hybrid white collar statutes of perjury, false statements, obstruction of justice, and RICO. The empirical analysis suggests the need for an individualized multivariate approach to categorizing white collar crime to guard against broad federal statutes providing either under-inclusive or over-inclusive examination of this form of criminality.”

*****

Bruce Carton (Securities Docket) recently hosted this webinar titled “The U.K. Bribery Act After Five Years – Where Are We Now?” Panelists were Barry Vitou (author of thebriberyact.com) and Anne-Marie Ottaway of the law firm Pinsent Masons; Vivian Robinson QC, former general counsel to the UK’s Serious Fraud Office and now a partner at McGuireWoods; and Julian Glass of FTI Consulting.

*****

A good weekend to all.

 

 

Book Review – “The Foreign Corrupt Practices Act In A New Era”

Tuesday, May 12th, 2015

New EraToday’s post is a book review by Professor Peter Reilly (Texas A&M University School of Law and author of several FCPA articles) of my book “The Foreign Corrupt Practices Act In A New Era.”  The review originally appeared in a recent volume of International Trade Law and Regulation.

*****

The Foreign Corrupt Practices Act in a New Era, by law professor Mike Koehler, provides a fascinating and thorough analysis of the Foreign Corrupt Practices Act (“FCPA”).  But the book does far more than that; this volume attempts to educate readers in such a manner that they understand not only the motivation and thought processes behind the initial passage of the Act, but also the ongoing policy debates surrounding this important and controversial piece of legislation.

While some books on the FCPA appear to target a particular audience, such as academics for example, this volume will prove useful to anyone, in whatever field, who wants to thoroughly understand the past, present, and future of the FCPA, whether that person is engaged in business, law, government, academia, public policy, or any other pursuit or profession.

Professor Koehler’s insightful presentation and analysis of material on the FCPA likely comes from his unique background in the field.  Prior to academia, Koehler was an FCPA attorney in private practice where he advised clients on FCPA compliance matters, conducted FCPA investigations around the globe, and negotiated resolutions to FCPA enforcement actions with government agencies including the U.S. Department of Justice and the U.S. Securities and Exchange Commission.  Professor Koehler explains how his work in private practice led to an intense interest in “asking the why questions” regarding the FCPA and “injecting a candid and informed scholarly voice into the issues.”

This, in turn, led to a career in academia with a near-singular focus on mastering the complex and fascinating topics surrounding the FCPA and other anti-corruption laws and initiatives.  In this capacity, Koehler has testified before the U.S. Congress on the FCPA, published articles on the topic in leading law reviews and journals, been cited in legal briefs, judicial decisions, policy papers, and Congressional testimony, and been a featured source in various national and international media.  In short, Professor Koehler has become one of the most knowledgeable and influential thinkers in the field, both domestically and internationally, and this volume represents the fruit of a number of years of thoughtful research, writing, and teaching on the subject.

The depth and breadth of material covered in the book is ambitious, including the FCPA’s legislative history; enforcement agency policies and practices, including various alternative dispute resolution vehicles commonly used by enforcement agencies; FCPA legal authority, as well as administrative and other sources of guidance concerning the law; the FCPA’s anti-bribery provisions, as well as its books and records and internal controls provisions; reasons for the increase in FCPA enforcement during the past decade; compliance and best practices information; and suggested FCPA reform measures.

At the beginning of the book, Professor Koehler sets forth numerous questions, many of which could take an entire law review article to answer.   These questions include: (1) Who decides what bribery is? (2) Are business organizations that are subject to FCPA scrutiny ‘bad’ or ‘unethical’? (3) Is it still ‘bribery’ if the conduct in question was supported by the highest levels of the U.S. government? (4) If bribery is ‘bad,’ does that mean that all attempts to punish bribery and deter future misconduct are ‘good’? (5) Why has FCPA enforcement increased to the point that it is now a top legal and compliance concern for companies doing business in the global marketplace? (6) Has the quantity of FCPA enforcement actions become a higher priority for enforcement agencies than the quality of those actions? (7) Why does FCPA compliance remain difficult for even the most well-managed and well-intentioned companies? (8) Has this ‘new era’ of FCPA enforcement actually resulted in wasteful over compliance, with companies viewing every foreign business partner with irrational suspicion? (9) Is this ‘new era’ of FCPA enforcement—along with the ‘thriving and lucrative anti-bribery complex’ that has emerged simultaneously—desirable from a legal or policy perspective? (10) Has this ‘new era’ of FCPA enforcement been successful in actually reducing bribery?  And if not, could the FCPA be amended, or could certain enforcement agency policies and procedures be revised, in order to better achieve the original aims of the FCPA?

The book addresses the issues surrounding these questions at a surprisingly detailed and in-depth level, especially with respect to those questions requiring answers that are more subtle and complex in nature.  The fact is there can be strong disagreement regarding the answers to many of these questions.  One of the more interesting aspects of studying the FCPA is to consider how much a person’s political or economic interests can influence his or her reasoning in answering the various questions posed by Koehler.  The key is that Professor Koehler, ever the law school teacher who is more fond of questioning, probing, and analyzing an issue than of trying to force feed his own conclusions in the matter, concentrates on building knowledge and skill-level within readers so they themselves can successfully grapple with the questions presented in the book, as well as their own questions involving the FCPA.

Specifically, Professor Koehler relies on numerous vehicles and texts to build what he calls “FCPA goggles” for readers, enabling them to understand the FCPA to the extent necessary to make their own assessments of the strengths and weaknesses of the law, and to be able to pinpoint areas where the FCPA might be changed for improvement.  Readers are introduced to the FCPA’s statutory text, legislative history, judicial decisions, enforcement agency guidance, and various enforcement actions.  Koehler believes that analyzing these various authorities, and figuring out their impact upon how the FCPA is understood and enforced, are key aspects of providing readers with the knowledge they need to continue their own questioning, probing, and analyzing of this controversial law.  As Professor Koehler says to the reader, “[W]ith your FCPA goggles you now have a sharper focus to critically analyze various aspects of this new era, including whether the current FCPA and its enforcement best advance the laudable objectives of the FCPA.”

It is these ‘FCPA goggles’ that allow readers to judge the two suggestions for reform put forth by Professor Koehler toward the end of the volume:  a compliance defense, as well as the abolition of Non-Prosecution and Deferred Prosecution Agreements (NPAs and DPAs) within the context of FCPA enforcement.  I will leave it to readers of the book to determine for themselves, through their own ‘FCPA goggles,’ whether Koehler has made a strong case for either suggested reform measure.  I will say, however, that Professor Koehler seems to be aware that he has well-equipped readers to subject his ideas to deep and knowledgeable scrutiny based upon what he has taught them to that point in the book.  With that in mind, Koehler has to carefully explain why, for example, a compliance defense is neither a new nor novel idea; how in some respects the Department of Justice already recognizes a ‘de facto’ compliance defense; how numerous former high-ranking government officials support such a defense; and which important policy objectives would be advanced through an FCPA compliance defense.  Koehler builds and bolsters his argument by relying upon various testimony and legal and policy authority.  It almost feels like an academic ‘capstone’ exercise for the book, where the Professor puts forth his arguments and then turns to the reader/student and asks, “Have I done what I set out to do in this project?  Are you now able to thoroughly question, analyze, and criticize my arguments based upon what you have learned through this book?”

The answer is unequivocally yes; and the contribution this new volume makes to the field is unequivocally substantial.

*****

For additional reviews of the book, see here.

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

 

New Article – Ten Seldom Discussed FCPA Facts That You Need To Know

Wednesday, May 6th, 2015

FactsBloomberg BNA’s White Collar Crime Report recently published my article “Ten Seldom Discussed FCPA Facts That You Need To Know.”

If you want to develop a sophisticated understanding of the Foreign Corrupt Practices Act and related topics, you should read the article.

The article can be downloaded here and it begins as follows.

“Much is written about the Foreign Corrupt Practices Act. However, amid the clutter of enforcement agency rhetoric and resolution documents not subjected to any meaningful judicial scrutiny as well as the mountains of FCPA Inc. marketing material touting the next compliance risk, there are certain FCPA facts that are seldom discussed.

Yet such facts, covering the entire span of the FCPA (from the statute’s enactment, to its statutory provisions, to FCPA enforcement, to FCPA reform, to the FCPA industry itself) occasionally bear repeating.

This article does that by highlighting ten seldom discussed FCPA facts that you need to know.”

 

A Look Back At 2014 FCPA Enforcement And Related Developments

Wednesday, March 25th, 2015

2014 year in reviewEach year, in addition to numerous posts published on this site, I author a year a review / recent developments article devoted to the Foreign Corrupt Practices Act and related issues.

The 2014 version is forthcoming in the Santa Clara Journal of International Law and can be downloaded for free here.

Among the issues addressed in the article are the following:

  • A wide variety of FCPA enforcement statistics from 2014;
  • A comparison of enforcement statistics from 2014 to prior years;
  • The wide spectrum of FCPA enforcement actions from 2014 and how the breadth of such allegations send confusing compliance messages to those subject to the FCPA;
  • The wide gap between corporate and individual FCPA enforcement and a relevant data point which helps explain the gap;
  • The surge in SEC administrative actions to resolve alleged instances of FCPA scrutiny and why the surge is problematic;
  • The most important FCPA legal development from 2014; and
  • How judicial scrutiny of enforcement theories related to FCPA enforcement should cause pause as to certain FCPA enforcement theories.

Combine the 2014 year in review article with the ones below 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.

A Comprehensive FCPA Resource

Wednesday, November 5th, 2014

The question was recently asked: ”will there ever be a classic treatise on the FCPA?”New Era

According to Webster’s, a treatise is a book, article, etc., that discusses a subject carefully and thoroughly.

With that definition in mind, I invite you to consider my new book “The Foreign Corrupt Practices Act in a New Era.”  Inside you will find:

  • A thorough telling of the story of the FCPA told largely through original voices of actual participants who shaped the pioneering law;
  • Foundational knowledge (such as DOJ and SEC policy and resolution vehicles and the realities of the global marketplace) that best enhance understanding and comprehension of specific FCPA topics;
  • A comprehensive analysis of the FCPA’s anti-bribery provisions and for each element, exception or affirmative defense discussion of all legal sources of authority (including all relevant substantive FCPA judicial decisions) as well as non-legal sources of information (including discussion of over 70 FCPA enforcement actions);
  • Discussion of other legal issues also relevant to FCPA enforcement;
  • A comprehensive analysis of the FCPA’s books and records and internal controls provisions including legal authority as well as non-legal sources of information;
  • Analysis of the typical origins of FCPA scrutiny and enforcement;
  • Discussion of FCPA settlement amounts, how they are calculated, and analysis of legal and policy issues relevant to settlement amounts;
  • Discussion of FCPA sentencing issues, how sentences are calculated, and an analysis of legal and policy issues relevant to sentencing decisions;
  • An extended discussion and analysis of an often overlooked topics, “FCPA Ripples,” and how 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;
  • An exploration of practical and provocative reasons for the general increase in FCPA enforcement during this new era including a discussion of FCPA Inc. and the business of bribery;
  • Identification and discussion of FCPA compliance best practices and benchmarking metrics; and
  • An in-depth discussion and analysis of FCPA reform designed to ensure that the FCPA is best achieving the original goals of the law and that FCPA enforcement is transparent and consistent with rule of law principles.

Whether the above topics highlighted and explored in “The FCPA in a New Era” make it a classic treatise, well, I invite you to come to your own conclusion.  At the very least, you will have to agree that the cover of the book is more inviting than a typical treatise.

While I am certainly not going to ascribe labels to my own work, I am pleased to share what others have said about “The FCPA In a New Era.”

Michael Mukasey, former U.S. Attorney General

“Professor 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.”

Professor Daniel Chow, 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.”

 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.”

Thomas Fox, FCPA Compliance and Ethics Blog and FCPA Practitioner

“The Foreign Corrupt Practices Act in a New Era” 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.”

Barry Vitou, thebriberyact.com and Compliance Practitioner

“If you only read one book on the US FCPA, read this one. [...] 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.”

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

For media coverage of the book including Q&A’s, see here from Corporate Counsel, here from Global Investigations Review, and here from Corporate Counsel Weekly.

*****

Looking for even more information and analysis of the FCPA and FCPA enforcement?

I invite you to all also consider the following year in review articles.  Granted the below articles are not found between two covers, but you will find approximately 500 pages 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.