Shifting The FCPA Reform Debate Into High Gear

By T. Markus Funk and M. Bridget Minder

Simmering throughout 2011, the robust FCPA reform debate can now be divided into a number of distinct drafting and public policy battle fields.

Our hope in writing a recent Bloomberg Law Report piece (available in pdf here) was to advance the dialogue. We examine (1) the core criminal law theory assumptions and (2) some of the public policy objectives driving the debate, including whether reforming the FCPA is advisable on public policy grounds, and the extent to which the position that foreign governments will view even modest FCPA reform as a signal to abandon wholesale their domestic anti-corruption efforts are justified.

(Having served two years in a post-conflict environment for USDOJ/State setting up domestic anti-corruption laws and enforcement mechanisms, the latter issue was of particular concern to one of the authors).

In the article, we also make four suggestions for reforming the FCPA.

They are:

• Provide a sensible “adequate compliance procedures” defense

• Appropriately limit successor liability

• Establish a fitting scope of corporate liability for acts of a subsidiary

• Properly define “foreign official”

To round out the analysis, we take a closer look at the theoretical assumptions grounding recent critiques of the U.S. Chamber of Commerce’s calls for reform.

In the end, all sides of the debate undeniably have a genuine, well-intentioned interest in balancing the noble pursuit of a corruption-free world against the values of fairness and transparency in our domestic laws and enforcement policies.

We hope that 2012 will see us come closer to reaching consensus.

___________________

T. Markus Funk, a former federal prosecutor who is now in private practice and is the Co-Chair of the ABA’s Global Anti-Corruption Task Force, and his Perkins Coie colleague M. Bridget Minder just authored “Bribery of Foreign Officials: The FCPA in 2011 and Beyond: Is Targeted FCPA Reform Really the “Wrong Thing at the Wrong Time”? in the Bloomberg Law Reports. It is available in pdf here.