Corporations — those that are subject to FCPA jurisdiction generally, and especially those who have already been named defendants in an enforcement action — commonly have two objections to enforcement. The Supplemental Transparency Project can answer both.
The first concerns the proverbial playing field, which the U.S. government aims to level through enforcement. It believes that bribe payors are at an unfair advantage, and that by punishing and deterring bribery, the field is made level. But the companies often see this very differently. Frequently their sense is that bribery actually keeps the playing field level, because their competitors are also paying bribes. So by enforcing the FCPA, the field tilts against them — they are now prohibited from engaging in what may be a routine form of business, putting them at a competitive disadvantage.
The STP is based on the premise that to really level the playing field, we must do more than merely punish those companies who are subject to FCPA jurisdiction.
The New York Times dedicated extraordinary resources to exposing Wal-Mart’s bribery scheme. But that publication cannot bankroll the investigation of Wal-Mart’s competitors. Who can? I think I know.
Think about it. Dedicate a portion of the settlement money to finance further investigative reporting. Expose their competitors. Let them, too, feel the pressure from their government, from the public, from the NGOs and IGOs. Now that would begin to level the playing field.
It’s in Wal-Mart’s interest. Prove to the public that the problem is far bigger than just one company. Everyone will want to know, and everyone will benefit from it. Everyone wins.
Everyone, that is, except the bribe recipients.
We’ll talk about the additional reasons corporations should like the STP in the next post.
Wal-Mart’s Victim’s Part I can be viewed here, II here, III here, IV here, V here, VI here, VII here, VIII here, IX here, X here, XI here, XII here, XIII here, XIV here, XVa here, XVb here, XVI here, XVII here, XVIII here, and XIX here.
Andy Spalding is a senior editor of the FCPA Blog.