This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.
On November 7, 1940, high winds buffeted the Tacoma Narrows Bridge, leading to its collapse. The first failure came at about 11 a.m., when concrete dropped from the road surface. Just minutes later, a 600-foot section of the bridge broke free. Subsequent investigations and testing revealed that when the bridge experienced strong winds from a certain direction, the frequency oscillations built up to such an extent that collapse was inevitable. For posterity, the collapse of the Bridge was captured on film.
I thought about this spectacular engineering failure when I read, yet again, commentary about representatives from the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) appearing at for-profit conferences to give presentations to attendees. Personally, I was shocked, simply shocked, to find out that one has to pay to attend these events. Further, it appears that one or more of the companies running these events, ACI, Momentum, IQPC and HansonWade, among others, might actually be for-profit companies. It was intimated that one of the ways the conference providers enticed registrants to pay their fees was to provide a forum of lawyers practicing in the Foreign Corrupt Practices Act (FCPA) space, to whom representatives from the DOJ and SEC could speak. Now I am really, really, really shocked to find that people actually pay to obtain knowledge.
Armed with the new piece of information that there is a marketplace where people actually pay to obtain information, I have decided to practice what I preach and perform a self-assessment to determine if I am part of this commerce in ideas. Unfortunately, I have come to the understanding that not only do I participate in that marketplace, but I also actually use information provided by representatives of the U.S. government in my very own marketing and commerce. So with a nod to Adam Smith’s Invisible Hand of the Marketplace; I now fully self-disclose that I digest what U.S. government regulators say about the FCPA, repackage it and then (try) and make money from it. (I know you are probably as shocked as I was to discover this.)
Where can one go to find out information about the FCPA, its enforcement and how the DOJ and SEC view compliance programs? First and foremost is the FCPA Guidance, jointly issued by the DOJ and SEC back in 2012. It is still the best one-volume resource on the government’s thinking on a wide range of issues relating to the FCPA. For a “Nuts and Bolts” guy like me, it even has some suggested building blocks of FCPA compliance called the 10 Hallmarks of an Effective Compliance Program. Of course, such a treatise must cost thousands of dollars, so it is only available to a very select few. Oops, it is available for FREE on the DOJ website. Darn, as I planned to buy up all of the copies and then put on for-pay seminars across the world as the only source of such knowledge.
Since the FCPA Guidance is available for free, perhaps I can corner the market on all known enforcement actions and Opinion Releases. I am sure that they will provide lots of good information such as what might constitute an effective compliance program, what are some of the actions that got companies into FCPA hot water and suggestions by the DOJ and SEC as to what might have constituted compliance failures. I have even heard that in Opinion Releases, the DOJ will pass upon fact patterns and indicate if they believe such facts might be prosecuted for FCPA violations. Double oops, as all of those are publicly available as well and for FREE. Double Darn.
OK, well if the FCPA Guidance is free and all the enforcement actions and Opinion Releases are available for free, maybe I can corner the market on court opinions, which discuss the FCPA. I am a lawyer and I bet all the other lawyers would pay me if I were the only person in the world who had access to them (or even better yet, if we were in China, where the trials are held in secret — imagine that market!). I know there are only a handful of such cases, but imagine the power I would have if only I knew about them. Why, I could I put on seminars and pay people to attend. Triple oops, as I just found out that the court decisions are public record and available for FREE. Drat.
Well, if all this information about the FCPA is available for free, what can I do to make money? Hmm, maybe, just maybe, if I put information together from all of the above sources in a book, people might be interested in buying it. What if I wrote multiple books? Do you think there might be a market for such written texts? I certainly hope so and to further entice you to join in this nefarious act of for-profit commerce, I invite you to check out my latest book, Doing Compliance: Design, Create, and Implement an Effective Anti-Corruption Compliance Program, available at Compliance Week. Or perhaps you might want to purchase either of the other three printed or five eBooks I have written on FCPA compliance. But wait a minute, wouldn’t that mean I am making money off of free government information? I guess I better self-disclose those facts and let the chips fall where they may. Hopefully Adam Smith will give me a declination of the Invisible Hand.
If no one will buy any of the books I have written, maybe they would attend training that I might put on. I could talk about all this free government information, put it in PowerPoint slides and other written materials and then charge people to get trained. I could even call it “FCPA Training.” Maybe I could go to other parts of the country and put on training, maybe in places where they might not have heard about all the free DOJ and SEC information. Of course, I would have to find such a place. But wait a minute, wouldn’t that mean I am making money off of free government information? I guess I better self-disclose that as well.
If no one will buy any books I write or go to training seminars that I might put on, I could always write a blog. Do you think anyone would pay to read a blog? Nah.
How about the following as a business strategy? I will tell people I am lawyer and I will give them legal advice on the FCPA. Of course to do so, I will have to use all of these free resources listed above and then charge clients for my legal services. Think there might be a market for that legal advice? I am not really sure, so perhaps I should make a provisional self-disclosure that if any clients came to me for legal advice, I would charge them and hence engage in commerce. It would also allow me to apply to join that hallowed group, FCPA INC. whose members (1) practice law around the FCPA, (2) put on FCPA training, (3) write books on the FCPA and (4) generally pontificate on all things FCPA. Sounds like a great group to belong to. You think they will take me? If so, I can’t wait to learn the secret handshake so I can proudly commune, in secret, with its members. Hopefully they will not haze pledges too badly, as I am way too old to survive another Pledge Week.
If you have not quite ascertained the point of today’s post, please consider the following – knowledge is power. If you want knowledge about the FCPA, there are plenty of places you can look for free to obtain that knowledge. If you want to hear the DOJ or SEC’s most current thinking on FCPA related issues, you can also attend a (for-pay) FCPA conference. If you do, I am sure I will see you there because I certainly value what they have to communicate to us. I also plan to continue to communicate it to you; sometimes even for profit. Long Live Adam Smith and his Invisible Hand!
Always remember, a little knowledge can go a long way, even if you have to pay to garner it.
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On December 4, I will be making a live presentation on the recent trend for the DOJ and SEC to target internal controls in FCPA enforcement actions and the interplay with the COSO 2013 Update at a live event in Houston, hosted by The Network. Baker and McKenzie partner Stephen Martin will be joining me and will discuss risk assessments in a best practices compliance program. For details and registration, click here.
And best of all both events are FREE, just like this video of the Tacoma Narrow Bridge collapsing.
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 advice, 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 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 
