Time flies when you are having fun.
As I’ve shared throughout the Fall, this semester I taught a Foreign Corrupt Practices Act class at Southern Illinois University School of Law using my forthcoming book “The Foreign Corrupt Practices Act in a New Era.” As noted in the release, the course is believed to be one of the first specific FCPA law school classes offered exclusively devoted to the FCPA, FCPA enforcement and FCPA compliance.
Throughout the semester, I have highlighted survey data collected – anonymously – from students in the class (see prior posts here, here, and here). Call them green, inexperienced, and naive as to how things really work. I call them good FCPA survey respondents because they are immersed in learning: (i) about black letter legal principles; (ii) legal authority as opposed to non-legal sources of information; and (iii) how the law and the adversarial system functions in other areas of law. I call them good FCPA survey respondents because their answers are not influenced by client concerns, maintaining their own practice, or maintaining good will with the enforcement agency officials who possess the “carrots” and “sticks” relevant to FCPA enforcement.
This fourth and final set of survey responses touch upon FCPA compliance and whether the current FCPA and enforcement policies and procedures are best achieving the original goals of the FCPA.
Set forth below are the survey questions and responses.
In the FCPA Guidance and in connection with its release, the DOJ/SEC have stated: (i) that it does not want companies “devoting a disproportionate amount of time policing modest entertainment and gift-gifting,” (ii) that FCPA enforcement is focused on “bribes of consequences – ones that have a fundamentally corrosive effect on the way companies do business;” and (iii) that it wants companies to spend “compliance dollars in the most sensible way.” Yet, recent FCPA enforcement actions have included allegations concerning perfume; dresses and handbags; a bottle of wine; a watch; a camera; kitchen appliances and business suits; television sets, tea sets and office furniture. Based on the above:
A. The enforcement agencies are right to send a deterrence message through such enforcement actions because such things of value are “bribes of consequence” that can have a “fundamentally corrosive effect on the way companies do business” = 11%
B. The enforcement agencies are sending conflicting messages concerning FCPA compliance and wise and efficient use of corporate resources = 89%
Does the FCPA have more of a “soft” enforcement impact on companies or a ‘”hard” enforcement impact?
A. ”Soft” enforcement impact = 78%
B. “Hard” enforcement impact = 22%
[FYI - As distinguished from “hard” enforcement of a law by enforcement agencies, “soft” enforcement generally refers to a law’s ability to facilitate self-policing and compliance to a greater degree than can be accomplished through “hard” enforcement alone].
Has this new era of FCPA enforcement resulted, in certain respects, in wasteful overcompliance and compliance fatigue?
A. Yes = 95%
B. No = 5%
If you answered “yes” to the above question, rank in order of importance (with 1 being most responsible and 3 being least responsible) who or what is most responsible for creating these compliance conditions?
The FCPA – the law itself = average = 2.7
The DOJ and SEC due to its enforcement theories and its conflicting messages concerning compliance = average = 1.2
FCPA Inc. and its “fear-based” marketing = average = 2
Is the current FCPA (i.e. the statute) and current FCPA enforcement policies and procedures best achieving the original goals of the FCPA?
A. Yes = 19%
B. No = 81%