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Contributing Editor

Julie DiMauro
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Thomas Fox
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Marc Alain Bohn
Contributing Editor

Bill Waite
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Shruti J. Shah
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Russell A. Stamets
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Richard Bistrong
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Eric Carlson
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Bill Steinman
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Foreign Affairs

Our singular focus over the past week moved our spouse to ask whether we also plan to redo the walls in Siemens Blue. We’re considering it. But what really comes to mind after the biggest FCPA enforcement action in history is that it involves not a U.S. company — not a Boeing or an Exxon or a GE — but “a corporation organized under the laws of Germany with its principal offices in Berlin and Munich.” It was snared by the FCPA because, as the Justice Department’s Information put it: “As of March 12, 2001, Siemens was listed on the New York Stock Exchange and was an ‘issuer’ as that term is used in the FCPA. 15 U.S.C. § 78dd-1(a). By virtue of its status as an issuer, Siemens was required to comply with the provisions of the FCPA.”

We shouldn’t be too surprised that the big hammer fell on a foreign company. Since 1998, the pace of investigations and enforcement actions involving foreign companies has accelerated. In addition to Siemens, overseas names in the FCPA news include ABB Ltd (Switzerland), Vetco Gray UK Ltd, Akzo Nobel, NV (the Netherlands), Statoil ASA (Norway), AstraZeneca (UK-Sweden), BAE Systems (UK), DaimlerChrysler (Germany), Innospec (UK), Magyar Telekom (Hungary), Norsk Hydro (Norway), Novo Nordisk (Denmark), Panalpina (Switzerland), Smith & Nephew (UK) and Total (France), among others.

Outside America’s borders, its globo-cop role may not sit well with everyone (it makes a lot of Americans uneasy, too). But the FCPA’s long reach and sharp teeth are changing global business practices. Our favorite pundit said it was probably the threat of criminal prosecution under the FCPA that finally scared Siemens enough to come clean. That’s what Congress had in mind in 1998 when it expanded the FCPA to cover foreign companies that weren’t issuers when they act unlawfully while within the territory of the U.S. ; American businesses needed a more level playing field.

But fighting public graft is also the right thing to do. A. A. Sommer, Jr., a commissioner of the SEC, said in 1976, a year before enactment of the FCPA, that “there are moral problems as well as legal problems that go far beyond simply the question of illegal payoffs to foreign officials. There are questions concerning the role of multi­national corporations, the extent to which they have obligations to the countries in which they conduct their business, the extent to which they should seek to raise the standards of conduct there, the respect which they should show the laws of other countries.” Thirty-two years later the Wall Street Journal could say that the quixotic Foreign Corrupt Practices Act had turned into one of Congress’s finer moments.

The DOJ’s Matthew Friedrich summed up the case this week with these words:

For let there be no doubt that corruption is not a victimless offense. Corruption is not a gentlemen’s agreement where no one gets hurt. People do get hurt. And the people who are hurt the worst are often residents of the poorest countries on the face of the earth, especially where it occurs in the context of government infrastructure projects, contracts in which crucial development decisions are made, in which a country will live by those decisions for good or for bad for years down the road, and where those decisions are made using precious and scarce national resources.

That’s why the fight against international public corruption is worthwhile, and why the FCPA makes sense.
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1 Comment

  1. Yes, the fight against international public corruption is the good fight. But you must admit that the comments by the SEC and DOJ are a bit disingenuous and ironic. Yes, they sure got that bad, bad German company. But those crimes pale next to the larger scandals of Washington and Wall Street. Yet those who promoted and condoned the twin national catastrophes of reckless war in Iraq and reckless gambling in our markets have largely escaped the accountability meted out to Siemens.

    Where were our protectors and prosecutors and regulators for U.S. citizens? You talk about corruption. How about our own home grown fraud and corruption? No, it’s all checkbook justice (to borrow your phrase) in this country. There was just so much easy money to be made, and no one wanted to be left out. The reckoning is largely for the rest of us — taxpayers, shareholders, the countless laid-off employees — not the corporate and political leaders who led us into the quagmire. It’s a replay of the Iraq equation: the troops, the Iraqi people and American taxpayers have borne the harshest costs while Bush and company retire to their McMansions. But we got those German, and Dutch, and Swiss. Thank God. And left the Americans alone.


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