Who is the Masked Man? An Interview with the FCPA Professor

This article originally appeared on Professor Koehler’s FCPA Professor website (www.fcpaprofessor.com) and is reprinted with his permission.

Tom Fox begins a series of interviews with prominent members of the FCPA commentariat, today starting with Mike Koehler, also known as the FCPA Professor.

1. Where did you grow up and where did you go to college and law school? Can you tell us about anything from those experiences that led you to your current position?

fcpa-professor-Mike-Koehler

FCPA Professor Mike Koehler

I grew up, as did my high school sweetheart wife, in Elkhart Lake, WI, a village of approximately 1,000.  Life was good in Elkhart Lake. It is a picturesque resort community, and the Kettle Moraine State Forest is nearby.

Both my Dad (a painter) and my mom (a nurse) instilled in me a good work ethic, and for many years I awoke at 4:30 a.m. to deliver newspapers.  Basketball defined much of my youth.  I remain the third-leading scorer in the history of Wisconsin high school basketball (2,685 points) and the leading scorer in state history who did not play for their dad!

I played college basketball at the University of South Dakota (USD), and while at USD I had the good fortune to fall under the wings of the legendary Professor William “Doc” Farber and became a “Farber Boy,” a collection of USD Political Science students mentored by Doc, including Tom Brokaw, various senators and governors, and countless lawyers, business leaders and the like.  Being exposed to these successful individuals as a student was extremely beneficial and opened many doors to me.

Doc also literally showed me the world as we traveled to approximately 35 countries together.  Although we would visit the typical tourist sites, these trips were also educational missions as Doc would set up meetings with government officials, lawyers, business leaders and the like.  Doc passed away in 2007 (at the age of 97) before I began my academic career, but I like to think that he would be proud of me and the things I do.

After USD, I attended the University of Wisconsin Law School.  Becoming a professor was not on my radar screen while in law school, but looking back at my law school days, the signs were there as I was keenly interested in development of the law, the intersection of law and policy, and Wisconsin’s law in action approach to education.

2. Can you tell me about your professional career before you went into academia?

After law school I began at Foley & Lardner, a large national law firm based in Milwaukee.  As typical for a young associate at a big firm, my first few years were a hodgepodge of various assignments.  However, I soon began to take ownership of my career by focusing on the Foreign Corrupt Practices Act, which intrigued me from the first time I heard of the law.

Being a young associate in a large law firm, based in Milwaukee, circa 2000 and wanting to focus on the FCPA sounds ridiculous, but I was ever persistent and before I knew it I was flying around the world conducting FCPA investigations.  The work was fascinating and the trips were fun.  I was like an FCPA sponge.

During those long trips to Indonesia, India, China and other far-off places I took with me everything I could possibly read related to the FCPA.  I attended nearly every FCPA conference that my schedule allowed.  I sat around the negotiation tables at SEC and DOJ headquarters.  I soon began to realize that many in the industry were all singing from the same sheet of music, and it appeared to me that little actual lawyering was involved in the FCPA practice.  Few of the pressing why questions were being asked because the FCPA bar was so small and fear of rocking the boat with the enforcement agencies seemed more important than advocating for a client.

I was intellectually curious and motivated to ask the why questions but knew that my position at a big law firm did not provide the best opportunity to do so.  As many attorneys do after spending several years at a big law firm, I began to re-evaluate my career and asked myself what about the law I enjoyed the most.  For me, that was research and writing and asking the why questions — why is the law the way it is and how can it be improved.  That, along with the fact that the vibe of college campus never left my bones, motivated me to pursue a path towards academia.

It was a long path, as tenure track positions in academia are very difficult to get.  Here again, I was persistent and after a few years of being unsuccessful, I was grateful when Butler University gave me a chance in 2009 to become a professor.  After three successful years as a law professor in a business school, I was grateful again when Southern Illinois University gave me a chance recently to become a law professor in a law school.

3. I have always wondered where you came up with the phrase “the façade of FCPA enforcement.” Can you tell us a bit about it?

I wish I could claim original ownership to the concept, but I borrowed the “façade of enforcement” part from U.S. District Court Judge Jed Rakoff in his SEC v. Bank of America decision concerning the SEC’s neither admit nor deny settlement policy.  The issues he raised in that case concerning the dynamics of resolving an SEC enforcement action have clear parallels to FCPA enforcement.

Just to be clear, and as noted on the very first page of the article published in the Georgetown Journal of International Law, I am not arguing or suggesting that every FCPA enforcement action is unwarranted or that no company or individual has never violated the FCPA.  Rather, what I aimed to demonstrate in the article was that a significant majority of recent FCPA enforcement actions are a façade – including those that allege clear instance of corporate bribery – yet are resolved without FCPA anti-bribery charges.

I was honored to have the opportunity to discuss my article and the “façade of enforcement” during my 2010 Senate testimony.  I conclude the article by encouraging more FCPA defendants to challenge the enforcement agencies and further expose the façade of FCPA enforcement.  I will leave it to others to decide whether the article has made a difference, but the article (as evidenced by download statistics) is the most read FCPA article out there and since its publication there have been several challenges to various enforcement agency theories.

4. What is the reason you started the site FCPA Professor and what do you hope to achieve with it?

When I launched FCPA Professor in July 2009, my mission statement was to inject a much needed scholarly voice into FCPA issues. In addition to covering the who, what, and where of FCPA enforcement actions and related issues, I wanted to also explore the more analytical why questions increasingly present in this current era of aggressive FCPA enforcement. The goal was to foster a forum for critical analysis and discussion of the FCPA and related topics among FCPA practitioners, business and compliance professionals, scholars and students, and other interested persons.

The mission remains the same today.

5. You recently completed your second Ironman. Can you tell what it is like to prepare for and compete in such an event?

Ironman is obviously a physical test, but a mental test and emotional journey just the same.  The mind often tells the body to quit before the body is ready, competing in an Ironman proves that point.  After a 2.4 mile swim and a 112 bike ride, your mind is telling you that you can’t run 26.2 miles.  After 6-8 miles of the run, your mind is telling you that you can’t run an additional 18 miles.  But you just do it because your body can.

Having the flexibility of an academic position makes training doable without sacrificing other aspects of my life.  My family continues to call Elkhart Lake, WI, home during the non-academic portions of the year, and it is an ideal triathlon training area with an active athletic scene.

There are some Ironman who allow the pursuit to dominate their life and religiously follow a training regime.  I am not one of those people, rather I train when I feel like training, not because a schedule says I am supposed to do x,y, and z on a particular day.  I think such an approach takes the fun out of the discipline.

Being physically active is part of my DNA and sharpens my thinking.  In fact, many ideas for my FCPA Professor posts, articles and scholarship have been formed or sharpened while training.

Koehler’s most recently published work is Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart’s Potential Exposure, which can be downloaded here.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com. © Thomas R. Fox, 2012

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thomas-fox-thomas-fox-lawAbout the Author

Thomas Fox has practiced law in Houston for 25 years. He is now an independent consultant, assisting companies with FCPA and international transaction issues. He recently published the book Lessons Learned on Compliance and Ethics: The Best from the FCPA Compliance and Ethics Blog, available on Amazon.

Thomas Fox can be contacted via email at tfox@tfoxlaw.com or through his website www.tfoxlaw.com

About the Author

Thomas Fox

Tom Fox headshot updated - CopyThomas Fox has practiced law in Houston for 25 years. He is now assisting companies with FCPA compliance, risk management and international transactions.

He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously Division Counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division, which included the logging, directional drilling and drill bit business units.

Tom attended undergraduate school at the University of Texas, graduate school at Michigan State University and law school at the University of Michigan.

Tom writes and speaks nationally and internationally on a wide variety of topics, ranging from FCPA compliance, indemnities and other forms of risk management for a worldwide energy practice, tax issues faced by multi-national US companies, insurance coverage issues and protection of trade secrets.

Thomas Fox can be contacted via email at tfox@tfoxlaw.com or through his website www.tfoxlaw.com.

Follow this link to see all of his articles. Tom also writes a regular column on CCI called Compliance Nuts & Bolts.

About CCI

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