Wait a Minute – The FCPA Enforcement Sky Did Not Fall?

Michael Volkov
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No matter what, I am an optimist. A pessimist’s worldview and lifestyle is really unattractive. I would always rather see the glass as half full.

Too many in the professional world have confused negative perspectives and predictions as a way to demonstrate their own expertise. It is an unfortunate practice in today’s professional world that negativity has replaced unbiased expertise.

Pessimists always argue that if they assume the worst, they will be pleasantly surprised when things turn out okay. That is not a good way to live. Negativity can bring about negative results. Cynics can breed cynicism.

So lets turn to the FCPA enforcement issue. When the new administration came into power, many in the FCPA world generated attention by making wildly negative predictions. Or should I say they wanted to be proven wrong and were afraid to make an objective call. Instead, the “negative nabobs of nattering” negativity predicted the new administration was going to dismantle the Justice Department’s anti-corruption enforcement program.

They have to admit they were wrong, but they would “happily” do so since they were proven wrong. To the extent that companies relied on these commentators, I am afraid they should revisit the issue. The new administration is not doing anything to undermine FCPA enforcement, and has indicated that it intends to continue full speed ahead.

The additional question I ask myself is why do commentators try to generate fear and concern about FCPA enforcement activities, lamenting the state of the world, the inevitable rise of corrupt politicians and the deterioration of our global community? Some people like being negative – we all know someone like that, who love to complain, create dram and generate topics to talk about and entertain. The professional community reflects our basic community and one should expect the same.

Those who predicted the demise of FCPA enforcement ignored several significant trends. The Justice Department has dedicated significant resources – prosecutors and FBI agents – to anti-corruption enforcement.

Further, the Justice Department has expanded the global enforcement network of prosecutors and law enforcement by promoting international training, ongoing working relationships and sharing of information. Bringing together a collaborative relationship among various countries has an inevitable influence on policymakers.

Finally, the Justice Department’s FCPA enforcement program has been a success, especially from the eyes of the Justice Department itself. The increase in FCPA enforcement began under the Bush Administration and continued into the Obama Administration. The bi-partisan nature of this increase meant that its success was never going to be claimed by one political party over another, nor used as a club to beat the other party over the head. As a consequence, both Administrations embraced the program, supported it with resources, and reaped the benefits of large corporate settlements.

When the new administration came to power, notwithstanding past comments made by the president against the FCPA, the political risks of relaxing or eviscerating bi-partisan enforcement programs to favor companies in the name of increasing bribery of foreign officials were untenable. In other words, there was about as much chance of the new administration wrecking the FCPA enforcement program as there was the new Attorney General agreeing to legalize marijuana. It was not – and is not – going to happen.

So, to my friends, who once again rallied around Chicken Little cries of doom surrounding FCPA enforcement, you can once again rest – the sky is not falling and the FCPA will continue on its enforcement road to the next adventure.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

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