The Foreign Corrupt Practices Act (FCPA) enforcement environment does not adequately recognize a company's good-faith commitment to FCPA compliance and does not provide good corporate citizens a sufficient return on their compliance investments. This Article argues in favor of an FCPA compliance defense meaning that a company's pre-existing compliance policies and procedures, and its good-faith efforts to comply with the FCPA, should be relevant as a matter of Jaw when a non-executive employee or agent acts contrary to those policies and procedures and in violation of the FCPA. Among other reasons and justifications in support of an FCPA compliance defense, a compliance defense will better incentivize more robust corporate compliance, reduce improper conduct, and thus best advance the FCPA's objective of reducing bribery. An FCP A compliance defense will also increase public confidence in FCP A enforcement actions and allow the Department of Justice to better allocate its limited prosecutorial resources to cases involving corrupt business organizations and the individuals who actually engaged in the improper conduct. The time is right to revisit an FCP A compliance defense.
Description
Symposium: The Changing Role and Nature of In-House and General Counsel
