Tuesday, December 20, 2011

Big, Bold, and Bizarre: the Foreign Corrupt Practices Act Enters a New Era - New Scholarship

Check out Professor Mike Koehler's new article on the FCPA here -

In 2010, Justice Department Assistant Attorney General Lanny Breuer proclaimed "a new era of FCPA enforcement; and we are here to stay." This new era has already witnessed several developments worthy of discussion and examination.

In Part I of this article, I agree that a new era of Foreign Corrupt Practices Act ("FCPA") enforcement has indeed arrived; and I demonstrate, using 2010 FCPA enforcement actions and related developments, how big FCPA enforcement has become. That a new era of FCPA enforcement has arrived, begs the question however of why it has arrived given that the FCPA itself has not changed since 1998. I demonstrate that much of the largeness of FCPA enforcement in 2010 was the result of bold enforcement theories that seemingly conflict with congressional intent in enacting the FCPA. Part I of this article also demonstrates that FCPA enforcement in 2010 was more than just big and bold: it was also bizarre. Among other things, FCPA enforcement suffers from several inherent contradictions; and despite lofty anti-bribery rhetoric from the enforcement agencies, bribery and corruption is tolerated by certain companies in certain industries and for other strategic reasons.

Against the backdrop of a big, bold, and bizarre year in FCPA enforcement, Part II of this article highlights how 2010 was also defined by increased scrutiny of the FCPA itself and FCPA enforcement by the judiciary, Congress, the FCPA bar, and international monitor groups. This scrutiny crested in November 2010 when a Senate committee held oversight hearings on the FCPA, during which certain Senators also expressed concerns regarding the FCPA’s new era and a desire to reform the FCPA.

Part III of this article highlights 2010 developments related to the FCPA and FCPA enforcement, such as debarment issues and passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

This article concludes with Part IV, a look at the road ahead, as this new era of enforcement begins.



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