Compliance programs & the FCPA: Is the sky really falling?
What some people may think in response to the new release from DOJ that FCPA enforcement is de-emphasized:
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“Oh, No!? The FCPA is dead! Now you won’t have a compliance program at all! Without the FCPA anyone can pay bribes anywhere and face no consequences. Now there is no reason coming from the enforcement side to have a compliance program. Unless your company’s virtue, ethics and values were your only reason for having a compliance program, your entire compliance program will now disappear.”
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That is the chicken little view.? Credit to the Chicken Little story: (https://en.wikipedia.org/wiki/Henny_Penny#:~:text=There%20are%20several%20Western%20versions,point%2C%20there%20are%20many%20endings.)
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Now, a dash of reality.
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For those who think this new DOJ policy means you can just forget about compliance programs, does that actually make any sense?? Last time we checked there were quite a few other laws subject to enforcement. Lots of Federal regulatory agencies have enforcement authority.? Does anyone anticipate the current administration also stepping back from enforcing immigration laws, for example?? There are 50 states plus DC.? Any reason they will stop with enforcement of state laws?? There are laws that can be pursued by private parties.? There are over 200 nations around the world, none of which have announced that they have stopped enforcing their laws.?
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1.??? ?The FCPA is still law and still in force.?
a.??? DOJ no longer has it as a priority, but that can change any time, without any warning.?
b.??? It is still a binding law
2.??? The FCPA is also enforced by the SEC.
3.??? FCPA crimes are subject to enforcement any time within the 5-year statute of limitations.
a.??? That means the next administration can still prosecute you for anything you do during this administration.
b.??? There can also be changes at any time in the existing administration.? The government is not telling you it is safe to pay bribes – they are just shifting enforcement elsewhere.
4.??? Many other countries have similar laws.? The jurisdictional connection does not have to be much.? These countries include:
a.??? The UK with its Bribery Act and Adequate Procedures defense.
b.??? Every member of the OECD.
c.???? After dealing with American enforcement against their companies, other countries might seize on the opportunity to retaliate against American companies. Oh, and they might also be able to extract a ton of money from those American companies.? Maybe put some American officials in prison there.?
5.??? ?In no country is bribery legal.
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a.??? If you pay a bribe in Singapore, good luck.? You are going to need plenty.
b.??? In some countries they would be happy to take your bribe money and then put you in jail besides.? Sometimes you just can’t trust people who ask for and accept bribes.
6.??? Get out your wallet
a.??? Now every corrupt official on the planet sees a “welcome” sign on American companies, thinking Americans can no longer refuse to pay bribes on the basis of the FCPA
7.??? ISO 37001 still spells out detailed compliance program requirements for those companies wanting to or required to get certification.
a.??? Some companies and some governments may require this certification for their contractors and agents.
8.??? Once you’re hooked on paying bribes maybe try it at home?? Hey, if it works everywhere else around the world and no one in the company is telling you not to do it back home, then why not just go for it?
a.??? Every state can jail you for domestic bribery and impose fines on the company - blue or red states..
b.??? Bribery remains a serious crime here just as before.
c.???? But as others have discovered, once your people get accustomed to this way of doing business it can be natural to bring it back home, especially if no one is telling you not to.?
9.??? Much of the work you do for anti-corruption compliance is needed for anti-fraud compliance too.
a.??? The work you do to prevent bribery also works to prevent fraud and internal misconduct that hurts your own company.?
b.??? ACFE says companies typically lose 5% of their top line revenue to internal fraud.?
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Maybe Attorney General Bondi’s directive shifting current priorities on FCPA enforcement does not actually mean the sky is falling after all.? Maybe, as always, we need to be alert to changes relating to laws and enforcement priorities.? Changes are now happening in the US very rapidly.? As always, we need to pay attention and respond appropriately.? And as always, we need to pay attention to our compliance and ethics programs so that they work, and also can convince enforcement officials anywhere that we are serious and diligent in our efforts to prevent ?crimes and other violations.?
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#ethics #compliance? #complianceofficer #integrity #corporatecompliance #FCPA #DOJ #attorneygeneral ?#bribery #corruption #oecd
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Joe Murphy - Editor, Compliance and Ethics:? Ideas & Answers
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Transforming Compliance and Governance | Helping Employees and Leaders Navigate Risk, Investigate Misconduct, and Build World-Class Compliance Frameworks with Empathy | GRC, Internal Audit Execution & Leadership
4 小时前Joe Murphy, CCEP, love, love, love your arguments and so well said. I did a rudimentary count of your points and how about an alternate article title like, "25 reasons you can still go to jail for ignoring corruption laws"? Then, republish this piece in a CEO magazine for good measure. ??
Sr. Associate General Counsel - Compliance and Ethics
2 天前Joe, thanks for the balanced commentary. This is the same message I've been sharing - nothing changes! The law certainly hasn't changed. The hysteria I've seen in some outlets like blogs and podcasts is almost comical. I've actually unsubscribed from a few because of the total lack of analytical reasoning.
Mom x 2 | Authentic Leader | Ethical Business Architect and Business Problem Solver
2 天前Great article - this provides perspective and reason. Thank you!
India Compliance Officer | Featured in ACC Australia Women Inhouse 2020 | IIMA Alumnus | Personal Opinion; Likes are not endorsement.
1 周Very well articulated, Joe. FCPA is not the only player and there are other law enforcement agencies to combat corruptions!
Compliance & Governance Specialist | Consultant at 13 Elements | Keynote Speaker | Compliance Trainer | Former Journalist | Singapore / HK PR | Author
1 周If the old adage "there's no honour amongst thieves" were to hold true, this move by the US surely now makes it even less likely a US company will be bribed. For the simple reason in good, old fashioned bribery both parties could "hopefully" be counted upon to keep their mouths shut. That's no longer the case here with US companies potentially feeling there is no comeuppance for them under FCPA but there certainly is for the person taking the bribe under FEPA. Does this mean corrupt officials will now favour trying to extort bribes, and therefore business, from non-US companies instead? Will this actually cost US companies business?