Andy Spalding | Senior Editor
Andrew Brady Spalding is a senior editor of the FCPA Blog.
He’s a Professor at the University of Richmond School of Law.
A former Fulbright Senior Research Scholar and lawyer at a major international firm, Andy has lectured and conducted research on anti-corruption law throughout the developing world.
In addition to his frequent posts on the FCPA Blog, his work has appeared in the Wisconsin Law Review, the UCLA Law Review, and the Florida Law Review, among others.
Andy’s groundbreaking research about FCPA enforcement and its impact on developing countries has been discussed in leading publications, including the Wall Street Journal, the Economist, the Atlantic, and the New York Times.
Former Brazil President Luiz Inácio Lula da Silva“Nothing changes in Brazil. All these politicians now being convicted of corruption? They’ll be back in power, you wait.” So said my atypically cynical Brazilian student, and tragically, I was starting to believe her.
By almost any measure, the new FCPA enforcement policy is an important and positive development. Tom Fox, Bill Steinman, George Terwilliger, and others both here and beyond have noted as much, and I rise in concurrence.
The FCPA is both a confession, and a conviction. We confess that corruption is not somebody else’s problem; it’s our problem. We do not point a finger; we look in the mirror.
At a recent conference, I had the good fortune of asking a former high-ranking DOJ official, “how is it that pre-existing compliance is no part of the Pilot Program’s penalty reductions and declinations?”
The word “disappearance” does not suggest that the thing has ceased to exist. It simply means we can’t see it. Maybe it still exists, maybe it does not. But because it’s no longer visible, we wonder.
The Pilot Program is best understood as the DOJ’s response to three distinct lines of public commentary on FCPA enforcement. The Department should be commended for responding to this commentary — indeed, for even listening to it in the first place. And the responses have, in my view, largely been smart and fair. But it’s created a new difficulty. Fortunately, that difficulty is easily addressed.
Law schools have not historically excelled at cultivating the art of constructive criticism. So many of us once were, and some still are, people who believe that success is a zero-sum game; that the only way to build oneself up is to tear another down; that doing good is far less important than doing well; that another’s contribution is inherently a threat to my own self-worth.
We’ll spend a number of posts this month explaining what is good about the Pilot Program and what may be better. The last post explained the four (not three) requirements the Program establishes — voluntary disclosure, cooperation, remediation, and disgorgement — and how some of those terms have been carefully (re)defined. Here, let’s talk about what’s in it for the defendant.
The fall is upon us, the academic year has begun, and the season is right for reflecting on all that is good and all that could be better. In the FCPA space, among the biggest stories of the last year has been the Pilot Program — an experimental enforcement policy first announced in April 2016.