Mukasey Proposes Six Changes To FCPA

Michael B. Mukasey, who served as U.S. Attorney General from November 2007 to January 2009 after serving for more than 18 years as a federal district court judge in Manhattan and who currently is a partner at Debevoise & Plimpton LLP, testified yesterday before the House Judiciary Committee on the Foreign Corrupt Practices Act on behalf of the U.S. Chamber Institute for Legal Reform. (The Institute was founded in 1998 by the U.S. Chamber of Commerce, which represents the interests of three million businesses and organizations of all sizes, sectors and regions.) 

To say the least, Mukassey certainly is not “soft” on crime. So when he suggests that the FCPA, as currently written and enforced, “leaves corporations vulnerable to civil and criminal penalties for a wide variety of conduct that is in many cases beyond their control or even their knowledge,” and that the FCPA should be amended, Congress may very well listen. His suggested changes:
 
(1) Adding a compliance defense;
(2) Clarifying the meaning of “foreign official”;
(3) Improving the procedures for guidance and advisory opinions from the DOJ;
(4) Limiting a company’s criminal liability for the prior actions of a company it has acquired;
(5) Adding a “willfulness” requirement for corporate criminal liability; and
(6) Limiting a company’s liability for acts of a subsidiary not known to the parent.