Amnesty Under the FCPA?: A Senate Spotlight Focuses Attention on Rising Concerns Regarding the FCPA’s Explosive Growth

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Strict enforcement of the Foreign Corrupt Practices Act (“FCPA”) and the idea of offering some type of corporate amnesty program for businesses concerned about the remarkable increase in recent FCPA prosecutions and penalties was covered in a hearing earlier this week before a Senate Judiciary Subcommittee. Unfortunately for corporate America, the outlook for instituting such an amnesty program does not appear promising. Despite numerous calls for implementing such a program, and thereby incentivizing corporations to earnestly comply with the FCPA, the continuing rhetoric from the Department of Justice (“DOJ”) has been negative.

“We don’t believe that immunity is appropriate,” testified Greg Andres, the Deputy Assistant Attorney General of the criminal division of the DOJ, “just as we don’t believe that a bank robber could get immunity for disclosing that he robbed a bank.”

The FCPA prohibits any and all bribes (whether financial or "anything of value”) to foreign officials in exchange for favorable business dealings. The federal law applies to individuals and to U.S. companies, their employees and their agents. Over the last year alone, FCPA enforcement has grown astronomically as the Department of Justice imposed more than $1 billion in criminal penalties for FCPA-related actions. Just five years ago, this number stood at a mere $16 million. Charges against individuals have also increased dramatically as the DOJ restructured and added another dozen prosecutors to its newly focused FCPA unit.

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