This post was reprinted with permission from FCPA Professor.
This “new era” of FCPA enforcement has resulted in many things. From my perspective, one of the best things it has resulted in is increased attention of the FCPA and FCPA compliance among academics and students.
The ABA Criminal Justice Section’s Global Anti-Corruption Task Force recently published “Complying With the Foreign Corrupt Practices Act: A Practical Primer.” The report is authored by University of Chicago Law Students Salen Churi, David Finkelstein and Joe Mueller; University of Chicago Law School faculty Dean David Zarfes, Michael Bloom and Sean Kramer; and Corporate Lab participants John Frank and Michel Gahard (both of Microsoft).
The University of Chicago Corporate Lab objective is “to provide students with ‘real-world’ experience and context, to prepare them to become well-rounded legal practitioners with sound legal and business judgment, and to provide them with opportunities to work on cutting-edge projects with multinational companies.”
Among other things, the purpose of ”Complying With the Foreign Corrupt Practices Act: A Practical Primer” is to provide “a framework for developing effective [FCPA] compliance programs.” As the report notes, “The available guidance from the government on how to comply with the FCPA’s requirements and prohibitions is extremely limited” and “the guidance that the government has made available is vague, disjointed, and sparse.”
The report contains a comprehensive overview of the “purposes of a compliance program,” the “facets of a compliance program,” “sources of guidance in crafting a compliance program” and various “metrics for an effective compliance program.” However, contrary to the apparent suggestion in the report, the comprehensive FCPA best practices policies and procedures identified do not “protect companies from exposure to [FCPA] liability.”
This big-picture issue was presumably beyond the scope of the report, but it is the issue I addressed in my recent scholarship “Revisiting a Foreign Corrupt Practices Act Compliance Defense” (forthcoming Wisconsin Law Review). The comprehensive FCPA policies and procedures thoroughly discussed in the University of Chicago report should matter, as a matter of law (not merely in the opaque, inconsistent and unpredictable world of DOJ decision making), when a non-executive employee or agent acts contrary to those policies and procedures and in violation of the FCPA.
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About the Author
Mike Koehler is an assistant professor of business law at Butler University and is an expert FCPA columnist for Corporate Compliance Insights. He is a leading expert on FCPA and other anti-corruption laws and initiatives. Professor Koehler has testified before Congress on FCPA, and he is also frequently speaks about such topics before business and academic audiences.
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