On June 5th, the American Bar Association Criminal Justice Section and the ABA Center for Continuing Legal Education in cooperation with Dorsey & Whitney & LLP and Pepper Hamilton LLP sponsored a program titled “The New Era of FCPA Enforcement and the Collapse of the Africa Sting Cases: Time to Reevaluate?”
I was pleased to participate along with John Buretta (Deputy Assistant Attorney General, Criminal Division, Department of Justice); Charles Cain (Deputy Chief, FCPA Unit, Securities and Exchange Commission); France Chain (Senior Legal Analyst, Anti-Corruption Division, OECD); Stanley Sporkin; and Eric Bruce (Partner, Kobre & Kim LLP). The program was moderated by Thomas Gorman (Partner, Dorsey & Whitney LLP) and Frank Razzano (Partner, Pepper Hamilton LLP).
An audio version of the 90 minute program can be downloaded here. Below is a breakdown of topics discussed along with the approximate minute mark(s) of the discussion.
4 – 11 minutes – Eric Bruce (defense counsel in the Africa Sting case) provides an inside view of the case.
11 – 13 minutes – discussion of 78dd-3 jurisdictional issues, including in the Africa Sting case
13 – 19 minutes – discussion of various issues including corporate FCPA resolutions, whether the DOJ is more of a regulator than prosecutor in FCPA cases, and the DOJ’s view of the Africa Sting cases including whether it learned anything from the cases
19 – 24 minutes – Stanley Sporkin weighs in as to the origins of the FCPA’s books and records and internal control provisions, says that the DOJ was hunting in the wrong place in the Africa Sting cases and says that FCPA enforcement needs to get back to the basics of “blocking and tackling”
25 – 30 minutes – discussion of the “foreign official” issue in which the DOJ says that “no one really conveys that they are confused” about what “foreign official” means
30 – 38 minutes – discussion of facilitation payments and whether the enforcement agencies have ignored this statutory exemption
38 – 41 minutes – I raise the question of whether the FCPA has morphed into an all-purpose corporate ethics or governance statute and discussion regarding what is the best way to expand the FCPA – through charging decisions or through Congressional action
42 – 50 minutes – discussion of compliance issues and how best to reward corporate compliance as well as the recent Garth Peterson / Morgan Stanley case in which I pose to the DOJ and the SEC the question of whether the outcome would have been any different if the FCPA had a formal compliance defense
50 – 55 minutes – discussion of miscellaneous issues including transparency in enforcement, cooperation issues and self-reporting
55 – 67 minutes – further discussion of compliance issues, including whether a compliance defense would be a “race to the bottom” or a “race to the top,” whether there is a Washington D.C. beltway view on FCPA compliance, and whether the increase in FCPA enforcement is doing anything to properly incentivize business conduct
67 – 71 minutes – discussion of whether there is any practical difference in the corporate liability standards in the U.K. Bribery Act and the FCPA
72 – 76 minutes – further discussion of the Africa Sting cases
77 – 79, 83 – 86 minutes – DOJ responds to a question regarding FCPA guidance, including timing and specifics
80 – 83 minutes – discussion as to whether it is acceptable not to self-report if the company otherwise implements a variety of internal remedial measures
87 – 89 – once again the issue of whether the DOJ has learned anything from the Africa Sting cases
If you are aware of other FCPA video or audio programs and would like to provide a similar annotation as to issues, please consider this an open invitation to do a guest post as many could benefit.