No, Bribery Did Not Just Become Legal

Some people may think in response to news about changes to DOJ enforcement around the FCPA: “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!”

That is the Chicken Little view. Now, a dash of reality.

For those who think this new DOJ policy means you can just forget about compliance programs, does that actually make any sense? Aside from FCPA, there are 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 the District of Columbia. Any reason to think they will stop with enforcement of state laws? There are laws that can be pursued by private parties. There are more than 200 nations around the world, none of which have announced that they have stopped enforcing their laws. 

A few reminders:

The FCPA is still law and still in force. 

• DOJ no longer has it as a priority, but that can change any time, without any warning. 
• It is still a binding law.

The FCPA is also enforced by the SEC.

FCPA crimes are subject to enforcement any time within the five-year statute of limitations.

• That means the next administration can still prosecute you for anything you do during this administration.
• 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.

Many other countries have similar laws. The jurisdictional connection does not have to be much. Consider:

• The UK has its Bribery Act and “adequate procedures” defense.
• Every member of the OECD criminalizes bribery.
• 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, or maybe put some American officials in prison there. 

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In no country is bribery legal.

• If you pay a bribe in Singapore, good luck. You are going to need plenty of it.
• In some countries, they would be happy to take your bribe money and then put you in jail anyway. Sometimes you just can’t trust people who ask for and accept bribes.

Get out your wallet.

• 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.

ISO 37001 spells out detailed compliance program requirements for those companies wanting to or required to get certification.

• Some companies and some governments may require this certification for their contractors and agents.

Once you’re hooked on paying bribes, maybe you’ll think you want to 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? Here’s why:

• Every state can jail you for domestic bribery and impose fines on the company — blue or red states.
• Bribery remains a serious crime here just as before.
• 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. 

Much of the work you do for anti-corruption compliance is needed for anti-fraud compliance, too.

• The work you do to prevent bribery also works to prevent fraud and internal misconduct that hurts your own company. 
• The Association of Certified Fraud Examiners says companies typically lose 5% of their top-line revenue to internal fraud. 

Maybe the recent Trump Administration moves do 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 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 can serve to convince enforcement officials anywhere that we are serious and diligent in our efforts to prevent crimes and other violations.