Once again, the FCPA Blog has published a post about the supposed “lull in FCPA enforcement.”
However, as recently highlighted in this post, there is no “lull in FCPA enforcement” and with over two months remaining in 2023 FCPA enforcement (including year end which historically is a robust time period for enforcement), corporate FCPA enforcement in 2023 is at or has exceeded corporate enforcement actions in seven recent prior years and is at the median for corporate enforcement actions per year over the past 15 years.
For argument’s sake though, let’s assume for a moment that there is a “lull in FCPA enforcement.”
Why do some seemingly present this as a bad development? Should it not be a good development?
In passing the Foreign Corrupt Practices Act, Congress anticipated that the “criminalization of foreign corporate bribery will to a significant extent act as a self-enforcing preventative mechanism.” Likewise since the FCPA’s earliest days, the DOJ has recognized that the “most efficient means of implementing the FCPA is voluntary compliance by the American business community.”
In short, the FCPA was never intended to be just a mechanism to achieve “hard enforcement” (actual enforcement actions), but more a mechanism to achieve “soft enforcement” (compliance) in furtherance of the statutory objective of reducing bribery and corruption. Indeed, as stated by the Sixth Circuit in Lamb v. Phillip Morris Inc., 915 F.2d 1024 (1990) and repeated by several other courts, the FCPA’s statutory scheme “clearly evinces a preference for compliance in lieu of prosecution.”
If the FCPA – or any law – was being effective in accomplishing its statutory purpose and objective, one might expect less enforcement, not more enforcement, in the law’s fourth decade, compared to its third decade, compared to its second decade, compared to its first decade.
The FCPA was never intended to just be enforced or to make a niche industry rich. Rather, it was intended to reduce bribery (at least a certain type of bribery addressed in the statute).
So if there was indeed a “lull in FCPA enforcement” (which there isn’t) why would this necessarily be a bad thing?
As the FCPA approaches its fifth decade, are some expecting (hoping) for more enforcement compared to its fourth decade? What about the FCPA’s sixth decade, seventh decade, etc? And if the answer is yes, what does that say about the FCPA’s “success.”
The post There Is No “Lull In Enforcement” – But If There Was … appeared first on FCPA Professor.