News & what's on - Written by Barry & Richard on Friday, August 22, 2014 3:44 - 0 Comments
REVIEW: The Foreign Corrupt Practices Act in a new era by Mike Koehler – BUY IT
It will be US$150 well spent.
Mike Koehler’s new book is probably the best book we’ve read about the FCPA. Covering, the before, the beginning and the now of the FCPA and its enforcement Mike (AKA the FCPA Professor - the name of his blog and coincidentally his occupation) carefully dissects the original legislation and tells us what the law is.
He then tells us what that means in practice today (which is not necessarily what the law says) and explains the backdrop to the thinking of the SEC, DOJ, companies, politicians and advisers.
For those wanting a pair of ‘FCPA goggles’ no book is, in our opinion, better.
This does not mean the book is perfect.
Mr. Koehler’s book is an unashamed 380 page pleading for amendments to the FCPA to temper what he considers to be an over expansion of jurisdiction and legal theory without judicial scrutiny by those who enforce it. Significant time is spent articulating these claims and in the final chapter to the author’s solutions. Broadly for those who are interested the FCPA Professor’s suggested amends fall into two buckets:
- a compliance defence similar to the Bribery Act’s ‘Adequate Procedures defence’
- abolition of Non Prosecution Agreements and Deferred Prosecution Agreements (because they lack judicial scrutiny in the US).
But the FCPA Professor’s underlying thesis and the observations made throughout the book to bolster the need for (the author’s) suggested amendments do not take away from the careful analysis and explanation of the FCPA, what it is and how it has been working in practice.
We don’t agree with all the assumptions the author makes nor the opinions he expresses. But everyone is entitled to their opinion(s) #just sayin’ and we’ve certainly got plenty.
Regardless, this book makes for important reading for lawyers, compliance officers and others the FCPA, and other anti-corruption laws, touch.
For those faced with complying with the FCPA (and the way it is presently enforced) whether you like the FCPA and its enforcement in its current form, or not, ‘it just is’ and understanding what that ‘is’ is in the new era helps level the playing field for commercial actors viz. the government – something we believe in strongly by the way.
One observation, those advocating for change in an imperfect world should sometimes be careful of what they wish for!
If we could make three changes to the FCPA and its enforcement they would be:
- a compliance defence – just like the Bribery Act’s ‘Adequate Procedures’ defence
- adding commercial bribery to the FCPA – just like the Bribery Act rendering obsolete the contortions and debate around the meaning of foreign public official – it seems perverse to us that it should be a valid defence to say that the person I bribed was not a public official (and yes we get the Travel Act point but it isn’t really used much is it…)
- injection of judicial scrutiny to NPA’s and DPA’s (solving at a stroke the FCPA’s Professors problem with them) just like the UK has done with its new DPA regime – because to prosecute or not should not be the (only) question – it is too blunt an instrument
The UK and the SFO are really leading the way here.
For those seeking a narrowing of the FCPA and its enforcement we say 2/3 aint bad.
We doubt they would agree.
See you really should be careful what you wish for…
Our rating 5/5. Buy it.