This article originally appeared on Professor Koehler’s FCPA Professor website (www.fcpaprofessor.com) and is reprinted with his permission.
On June 14, 2011, the House Judiciary Committee (Subcommittee on Crime, Terrorism, and Homeland Security) held an FCPA hearing. During the hearing, Chairman James Sensenbrenner (R-WI) firmly stated, “We are going to be drafting a [FCPA reform] bill.”
The force in which the statement was made (as well as the general tone of the hearing) gave the impression that a reform bill would soon follow the hearing. However, more than six months has passed and the much anticipated reform bill has not been introduced.
Reasons for the delay could be many. Some have speculated that the DOJ’s November announcement of FCPA guidance in 2012 stalled the FCPA reform bill on the theory that Congress is willing to let the DOJ issue its guidance before introducing a reform bill.
If that is the reason for delay of the FCPA reform bill, DOJ guidance is unlikely to quiet the growing chorus advocating for FCPA reform. As I observed earlier, DOJ’s promise of FCPA guidance in 2012 will not cure many of the issues that are being debated during this new era of FCPA enforcement. DOJ’s guidance is likely to be little more than a compilation in one document of information that is already in the public domain for those who know where to look. Moreover, what the FCPA needs is not guidance, but limited structural reforms (such as a compliance defense) as well as a change in DOJ policy (such as elimination of non-prosecution and deferred prosecution agreements).
Whenever an FCPA reform bill is introduced and whatever its specifics provisions, FCPA reform in 2012 is far from a sure thing. The topic is a political hot potato, particularly during an election season, and history instructs that substantive FCPA reform can drag on for many years.
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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