People ask us why there’s so much going on with the FCPA and other anti-corruption laws right now? What’s changed? they want to know. And what’s coming?
Here’s what we tell them:
Human rights. Politicians, activists, and citizens everywhere have a better understanding that graft destroys liberty and freedom and replaces it with fear and repression. Those forced to pay bribes for police protection, medical services, electricity, drinking water, and education are less free than those who don’t. Clean government is becoming the new norm.
National and global security. The world’s a dangerous place. And countries with corrupt governments aren’t reliable allies. They have leaky borders, erratic law enforcement agencies, and weak passport controls. Corrupt countries are safe havens for the bad guys so reducing corruption helps protect the rest of us.
Bang for the buck. How much does it cost a government to bring an enforcement action against a big corporation? And how much does a government get back in penalties? In the Siemens case — the best example — the U.S and Germany may have spent, say, $10 or $20 million on the prosecution. They got back $1.6 billion. A great return, and a great argument at budget time for more enforcement resources.
Low-hanging fruit. Some enforcement actions — lots of them these days — are falling into the lap of the DOJ, SEC, and now the SFO. Public companies are generally required under the U.S. securities laws to self-report potential FCPA violations. Then they’re required to conduct an internal investigation and report the results to the law enforcement agencies. Those agencies then propose proportionate penalties. There’s some negotiation but in the end all companies must cut a deal. Case closed. How difficult was that for the feds?
The big mo. Like environmental cases 20 years ago, or drug suits, or waves of antitrust actions — legal trends come into fashion and then fade. When something is hot, everyone wants in — prosecutors, private firms, politicians, and NGOs. And when the press joins the party, get ready for take off. Right now the legal tilt is toward anti-corruption enforcement. Are we at the apex? Not yet. Let’s see what happens over the next few years.