On Wednesday, our favorite pundit, Mike Koehler, left, posted on the FCPA Professor an item he called our ‘greatest hit.’
He generously said, ‘[P]icking Cassin’s greatest hit is no easy chore. But in my mind it is easy, this piece (“The FCPA’s Big Lesson”) written by Cassin one year ago (not on his FCPA Blog, but for Ethisphere) is Cassin’s greatest hit.’
Coincidentally, Prof Koehler’s own ‘greatest hit,’ in our estimation, also came exactly a year ago Wednesday. His Senate testimony on the FCPA and its enforcement was a watershed event that’s still reverberating around Washington and beyond. That day, Senator Arlen Specter was chairing a hearing of the Subcommittee on Crime and Drugs, part of the Senate Judiciary Committee. Prof Koehler’s critique of FCPA enforcement was cogent, crisp, and confident.
The high point for us? When Prof Koehler talked about the relatively few individuals who’ve been prosecuted for FCPA offenses, compared to the swarm of public companies that have paid huge fines to settle enforcement actions.
Prosecuting individuals is a key to achieving deterrence in the FCPA context and should thus be a “cornerstone” of the DOJ’s FCPA enforcement program. However, the answer is not to manufacture cases or to prosecute individuals based on legal interpretations contrary to the intent of Congress in enacting the FCPA while at the same time failing to prosecute individuals in connection with the most egregious cases of corporate bribery.
That’s a ‘greatest hit’ and then some.