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FCPA Professor Turns 5

Wednesday, July 16th, 2014

Five years ago today, I launched FCPA Professor with this simple mission statement.

“After a decade-long private practice legal career focused on the FCPA, I am pleased to launch “FCPA Professor” in connection with my new academic career. To be sure, there are other websites and blogs which cover FCPA topics. However, “FCPA Professor” seeks to inject a much-needed scholarly voice into FCPA issues. Thus, in addition to covering the “who, what, and where” of FCPA enforcement actions, news, and legislative initiatives, this blog will also explore the more analytical “why” questions increasingly present in this current era of aggressive FCPA enforcement. The goal of this blog is thus to foster a forum for critical analysis and discussion of the FCPA (and related topics) among FCPA practitioners, business and compliance professionals, scholars and students, and other interested persons.”

Five years and 1,262 posts later, here I am, the mission remains the same, and I thank you for your readership and being part of this journey.

What started out as a “blog” has turned into so much more and I hope you agree that FCPA Professor is a comprehensive website with, among other things:  links to original source documents; a detailed FCPA 101 page; and approximately 1,000 subject matter categories designed to facilitate in-depth research and analysis.

All of this takes time, money, and substantial effort, yet the content on FCPA Professor is provided free to readers.

If FCPA Professor adds value to your practice or business or otherwise enlightens your day and causes you to contemplate the issues in a more sophisticated way, please consider a donation to FCPA Professor to help celebrate this 5th anniversary.  Yearly subscriptions to other legal publications or sources of information can serve as an appropriate guide for a donation amount.  To donate click here.

I would also be grateful for nominations for the ABA Journal’s Blawg 100 list (see here).

In this post, I offer a variety of perspectives from running FCPA Professor for five years and writing on a near daily basis about the Foreign Corrupt Practices Act and related topics.

As suggested in FCPA Professor’s mission statement, I launched FCPA Professor after a nearly decade long private practice career at Foley & Lardner during which I conducted FCPA investigations around the world, negotiated resolutions to FCPA enforcement actions with government enforcement agencies, and advised clients on FCPA compliance and risk assessment.  As I have shared before, my FCPA insights are further informed by having read and analyzed: the FCPA’s entire legislative history, every FCPA enforcement action, every FCPA judicial decision, and other information and sources of guidance relevant to the FCPA.

Surprises

While all voices are welcome in the marketplace of ideas, against the above backdrop, what has surprised me most is the extent to which many informational gatekeepers in the FCPA space are not lawyers, or if lawyers, lawyers without substantial, real-world practice experience in the subjects they are writing about.  (For more on this topic, see this prior post).  In short, there is some real garbage out there when it comes to FCPA reporting, commentary and analysis.  Not differences of opinion (those are welcome) and to be sure we all make mistakes.  Rather, the deficiencies are as to black and white factual issues that ought to serve as an initial competency test before someone hits the publish button regarding an FCPA topic.  (For more on this issue, see this prior post).  While I don’t expect readers to agree with me on every topic or issue, what I do hope is that readers agree that my posts (particularly as to enforcement actions) represent the most substantive and comprehensive discussion and analysis that is free and publicly available on a near real time basis.

If you would have told me five years ago that writing (as I occasionally do) about legislative history and actual judicial authority relevant to the FCPA would somehow be controversial or provocative, I would have been surprised and I remain surprised about this aspect of my writing to this day.  In the minds of some (see here), I am the “anti-FCPA Professor.”  However should anyone remain curious as to my FCPA positions, they are succinctly stated here.    The irony of course (as highlighted in this prior post) is that more often than not, a former FCPA enforcement official is likely to say (or has already said) the same thing!

In doing FCPA searches literally every 24 hours, I am surprised the extent to which recasting original ideas, thoughts and concepts without proper attribution is common.  Original idea, thoughts and concepts are my tools and all I really have professionally.  Is it that difficult to cite or attribute?  (See here among numerous other examples).

Rewards

Gosh, I have met many people through, and because of, FCPA Professor.  It is very rewarding to receive reader e-mails or to be at conferences around the world and have a person stop you to say “hi, I read you every day, keep up the good work.”

I am often asked about the feedback I receive on my writing and the answer is as follows.  I start from the belief that a person who disagrees with me is more likely to contact me that a person who agrees with me.  Measured against this belief, it is rewarding that the feedback I receive is 90%+ positive and that includes from certain current DOJ and SEC officials who themselves struggle with many aspects of this new era of FCPA enforcement as well as many, many others who are simply incapable of publicly airing their genuine thoughts on many aspects of FCPA enforcement in a way they would like to do.

Some of my most rewarding feedback is from individuals, or more commonly family members of individuals, who find themselves caught up in this new era of FCPA enforcement.  These are real people, with real spouses, parents, children who have very real feelings about this new era of FCPA enforcement.  These are entirely different dynamics than a corporation being under FCPA scrutiny or a corporation resolving an enforcement action with shareholder money.

To my knowledge, FCPA Professor is the second “oldest” continuous website that focuses on FCPA issues and – I guess you can be the judge of this – the first website that began talking about FCPA issues in a different way.  Has FCPA Professor had an impact on various aspects of FCPA enforcement, FCPA reform and related issues? Again, you can be the judge of this, but regardless, I am confident in my answer.

Finally, there is intangible reward of knowing that someone, somewhere is beginning or ending their day, or passing time on their subway commute or airport delay reading you.  FCPA Professor readers span the globe and the sun literally never sets in terms of the traffic on this website.  I take my responsibility of being a gatekeeper of sorts very seriously and it is truly an honor.

I must admit, I enjoy reading FCPA enforcement actions (even though they are truly serious matters generally not thought of as pleasure reading), but reporting on enforcement and scrutiny alerts and updates is not what energizes me the most. Exploring the unexplored topics of the FCPA, making linkages, diving deep into the statistics, and holding public officials accountable for their policy positions is what I enjoy the most about running FCPA Professor.

Struggles

FCPA Professor is to a large extent a labor of love.

Nevertheless, doing anything on a near daily basis for five straight years can be taxing.  Daily searches for FCPA content and drafting and editing the daily post are sometimes a struggle particularly on days that I travel or have other professional or family commitments.  And let’s face it, the ebbs and flows of life are just that.  You all know me by virtue of this website, but I am, among other titles we all have, a husband, father, son, brother, and friend to others, not to mention having outside interests and passions as well.

You can assist these occasional struggles by submitting guest posts that I will consider for publication on FCPA Professor.  Candid, informed, and thoughtful commentary and analysis on FCPA and related issues are always welcome.

Is it a good thing that multiple websites all cover the FCPA on a daily basis and feel the need to deliver “new” content every day?  I struggle with this answer just as I struggle in my determination whether the 24-7 news cycle is actually a good thing.  Let’s face it, some days or weeks, there is just not much going on in the FCPA space.  Thankfully, my filler up to this point has been analyzing old enforcement actions so that FCPA Professor has the most extensive, in-depth collection, public and free collection of FCPA enforcement actions available.

The Future

Will I be running FCPA searches every 24 hours and writing near daily on FCPA topics in 3 years, 5 years, 10 years, 15 years, 20 years?   Gosh, I don’t know and in certain respects I could only be so lucky.

All I know is that the journey the past five years has been full of surprises, rewards, and occasional struggles.

Thank you for being part of the journey and I look forward to the future.

What Others Are Saying About The Book “The Foreign Corrupt Practices Act In A New Era”

Tuesday, June 17th, 2014

New EraRecently I announced publication of my book “The Foreign Corrupt Practices Act in a New Era.”

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.

Throughout the book, readers will assemble a pair of “FCPA goggles” and learn compliance pointers and risk-assessment strategies that can lessen the likelihood of FCPA violations from occurring when doing business in the global marketplace.  In this way, the book provides a toolkit that readers in a variety of professions can use to better understand the FCPA, its enforcement, and the many legal and policy issues present in this new era.

Set forth below is what others are saying 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.”

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

Monday, June 9th, 2014

New Era

I am pleased to announce publication of my book “The Foreign Corrupt Practices Act in a New Era.”  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.

In dissecting the FCPA’s new era, readers will confront the FCPA’s statutory text, legislative history, judicial decisions and enforcement agency guidance.  In addition, over seventy FCPA enforcement actions are discussed and useful tables and charts concerning a variety of FCPA enforcement topics are included throughout the book.

The book places an emphasis on learning FCPA issues incrementally in the belief that foundational knowledge introduced early will best enhance understanding and comprehension of specific FCPA topics.

Candid and comprehensive, the book is the first of its kind as it injects innovative and provocative concepts to the study of the FCPA and its enforcement such as the “three buckets” of FCPA financial exposure, the many “ripples” of FCPA scrutiny and enforcement, “FCPA Inc. and the business of bribery” and the “offensive use” of the FCPA.”

Throughout the book, readers will assemble a pair of “FCPA goggles” and learn compliance pointers and risk-assessment strategies that can lessen the likelihood of FCPA violations from occurring when doing business in the global marketplace.  In this way, the book provides a toolkit that readers in a variety of professions can use to better understand the FCPA, its enforcement, and the many legal and policy issues present in this new era.

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.

The FCPA Institute – Elevated Learning

Thursday, April 24th, 2014

FCPA InstituteI am pleased to announce the inaugural FCPA Institute to be held July 16-17th in Milwaukee, WI.

The FCPA Institute is a unique two-day learning experience ideal for a diverse group of professionals seeking to elevate their FCPA knowledge and practical skills.

At a typical FCPA conference, participants are a face in the crowd and information is conveyed in a disjointed fashion by dozens of speakers appearing on multiple panels with little opportunity for actual engagement.  The FCPA Institute is offered as a refreshing and cost-effective alternative to a typical FCPA conference.

The goal of the FCPA Institute is simple:  to develop and enhance fundamental skills relevant to the FCPA and FCPA compliance in a stimulating and professional environment with a focus on learning.  Information at the FCPA Institute is presented in an integrated and cohesive way by an expert instructor with FCPA practice and teaching experience.

In short, the FCPA Institute elevates the FCPA learning experience for a diverse group of professionals such as in-house and outside counsel; compliance professionals; financial and auditing professionals; and others seeking sophisticated knowledge and enhanced skills relevant to the FCPA.

The FCPA Institute places an emphasis on learning FCPA issues incrementally in the belief that foundational knowledge will best enhance understanding and comprehension of specific FCPA topics.  FCPA Institute participants will encounter FCPA legal authority and other non-legal sources of information that define this new era of FCPA enforcement as well as practice FCPA issue-spotting, receive instruction on how to conduct an FCPA risk assessment, and learn of FCPA compliance best practices.

To best facilitate the unique learning experience that the FCPA Institute represents, attendance at each FCPA Institute is capped at 30 participants.  At the end of the FCPA Institute, participants will have their knowledge assessed and upon successful completion of a written assessment tool can earn a certificate of completion.  In this way, successful completion of the FCPA Institute represents a value-added credential for professional development.

To learn more about the FCPA Institute and to register, please see here.

Introducing FCPA Connect

Wednesday, March 26th, 2014

You will notice a new page today atop this website for FCPA Connect.

FCPA Connect is an expert consulting service offered to legal, business, and other professional communities.

FCPA Connect is not a law firm and does not provide legal advise directly to clients. Rather, through FCPA Connect expert consulting services can be provided to lawyers, in-house and compliance counsel, and other professionals seeking reliable information about the Foreign Corrupt Practices Act, FCPA enforcement, FCPA compliance and related issues.

FCPA Connect thus assists other professionals achieve client and business objectives in a more efficient and effective manner.

Through FCPA Connect, professionals can tap into expertise and experience informed by a decade of FCPA practice experience at a leading international law firm and insights further informed by a review and analysis of: the FCPA’s entire legislative history, every FCPA enforcement action, every FCPA judicial decision, and other information and sources of guidance relevant to the FCPA, FCPA enforcement, FCPA compliance and related issues.

Candid, comprehensive, and cost-effective, FCPA Connect is a value added service for a wide range of professionals regarding: FCPA authority and other sources of information; FCPA enforcement actions; FCPA statistical information; FCPA compliance best practices; and other legal and policy issues relevant to the FCPA and FCPA enforcement.

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FCPA Connect is a service mark of FCPA Professor LLC.  By contacting Professor Koehler through FCPA Connect, it is acknowledged that no attorney-client relationship is formed and, absent a formal engagement, no assurance is given that information conveyed will be secure or treated as confidential.