FCPA

Is the Foreign Corrupt Practices Act too tough on American businesses? Should it be amended to create a more level playing field for U.S. companies operating abroad? We’ll leave that particular discussion for another time. It turns out, however, that a broad coalition of 33 groups have called on Congress to refrain from introducing legislation amending the FCPA – because they believe it could “significantly undermine” human rights and U.S.

One of the financial fraud trends we have highlighted here is the movement of federal and state financial fraud prosecutors to the private sector, where they become white collar criminal defense lawyers. We believe that this movement is going to continue, and probably grow, in 2012. 

The year has been full of settlements under the Foreign Corrupt Practices Act and it is appropriate that it ends with a big one:

The New York City Bar Association’s Committee on International Business Transactions has just issued a report on the Foreign Corrupt Practices Act and its “impact on international business transactions.” The report asks whether anything should be done to “minimize the consequences of the U.S.’s unique position on combating offshore corruption.” The report’s answer: Yes! 

There is a lot of law of financial fraud. Statutes, regulations, and court decisions create a wide swath of prohibited acts and set standards of conduct. As a nation, we generally find a great deal of consensus on the validity – and need for – many, and probably most, of these rules. For example, we agree that corporate executives should not trade on insider information. We believe that doctors should not file false insurance statements. And we are certain that politicians should not accept payments from lobbyists to introduce legislation benefiting their clients. 

But then there is the No. 9 issue of Financial Fraud Law for the year:

Eight former executives and agents of Siemens AG and its subsidiaries have been charged with allegedly engaging in a decade-long scheme to bribe senior Argentine government officials to secure, implement, and enforce a $1 billion contract with the Argentine government to produce national identity cards. 

Want to know “where the bribes are”? Take a look at http://www.fcpamap.com/, which breaks down the countries and industries that have resulted in penalties in U.S. government Foreign Corrupt Practices Act cases since 1977. The more red a country appears in the accompanying map, the higher the FCPA penalties paid for activities there. 

For American lawyers and companies operating here, one of the key aspects of Lanny Breuer’s comments to the 26th National Conference on the Foreign Corrupt Practices Act related to possible changes to the FCPA itself. 

In remarks to the 26th National Conference on the Foreign Corrupt Practices Act, Assistant Attorney General Lanny A. Breuer explained the three principal ways the Department of Justice combats corruption. Here are excerpts from his remarks discussing those methods. 

We believe that yesterday’s remarks from Assistant Attorney General Lanny A. Breuer to the 26th National Conference on the Foreign Corrupt Practices Act are worthy of noting for how they reinforce his views of fighting corruption, the importance of the FCPA, and the future of the Department of Justice’s prosecution, and regulatory, efforts in this area. We’ll be providing significant excerpts this morning.