NACDL - Commentary & Scholarship on the FCPA

Commentary & Scholarship on the FCPA

The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement.  This page contains commentary and scholarship on the FCPA.

Advocacy, commentary and scholarship on the FCPA are provided below.

Advocacy

Coalition Letter to the Department of Justice and the Securities & Exchange Commission on "Guidance Concerning the Foreign Corrupt Practices Act," February 21, 2012.

Written Testimony of NACDL Director of White Collar Crime Policy Shana-Tara Regon Before the House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, on the "Foreign Corrupt Practices Act," June 14, 2011.

Commentary & Scholarship

Paul F. Enzinna, The FCPA: Aggressive Enforcement and Lack of Judicial Review Create Uncertain Terrain for Businesses, The Manhattan Institute, January 2013.

Mike Koehler, Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart’s Potential Exposure, Sept. 2012.

Stephen Choi and Kevin Davis, Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act, July 2012.

Alexandra Wage, Corporate Counsel, Free Antibribery Tools for Corporate Compliance Officers, June 2012.

Jon Jordan, The Adequate Procedures Defense Under the UK Bribery Act: A British Idea for the Foreign Corrupt Practices Act, June 2012.

D. Daniel Sokol, Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement, June 2012.
 

Lucian E. Dervan and Markus Rubenstahl, Global Bribery: The Foreign Corrupt Practices Act, May 2012.

Mark Tuohey, Paul Enzinna, & Lauren Curry, Corporate Counsel, An In-House Counsel Corporate Corruption Playbook, April 2012.

Joseph W. Yockey, FCPA Settlement, Internal Strife, and the ‘Culture of Compliance’, March 2012.

Catherine Dunn, Corporate Counsel, Double Jeopardy and the New World of Antibribery Laws, March 2012.

Brian Cabrera, Corporate Counsel, Five Essential Elements of a Successful International Compliance Program, March 2012.

Continue reading below

Mike Koehler, What Percentage of DOJ FCPA Losses is Acceptable?, March 2012.

Barbara Black, The SEC and the FCPA: Fighting Global Corruption is Not Part of the SEC's Mission, February 2012.

Robert Plokin, Vivian Robinson, Jeremy Freeman & Kurt Wolfe, New York Law Journal, A New Era of Global Anti-Corruption Enforcement, February 2012.

Mike Koehler, Revisiting a FCPA Compliance Defense, January 2012.

Matthew Feeley, Corporate Counsel, From the Experts: Complying with the FCPA, Staying Competitive in China, January 2012.

Mike Koehler, Big, Bold, and Bizarre: the Foreign Corrupt Practices Act Enters a New Era, December 2011.

T. Markus Funk, Walking Through the FCPA and Travel Act’s Anti-Bribery Provisions, December 2011.

Drury D. Stevenson & Nicholas J. Wagoner, FCPA Sanctions: Too Big to Debar?, November 2011.

Michael E. Clark, What Is A “Foreign Official”?: Vague Term Complicates Corrupt Practices Act Compliance, November 2011.

Eugene R. Sullivan, The U.K. Bribery Act: Bolstering The Arsenal Of Anti-Corruption Legislation, Washington Legal Foundation, November 2011.

Jessica Tillipman, The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences, September 2011.

Richard Cassin, Courageous Correspondents: Recent Foreign Corrupt Practices Act-Related Scholarship that Rocked the Boat, 46 New Eng. L. Rev. 21 (2011).

Thomas Gorman & William McGrath, The New Era of FCPA Enforcement - Five Part Series, August 2011.

Joseph W. Yockley, Solicitation, Extortion, and the FCPA, July 2011.

Written Testimony of NACDL Director of White Collar Crime Policy Shana-Tara Regon, Hearing on the Foreign Corrupt Practices Act, House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security, June 14, 2011.

Philip Urofsky & Danforth Newcomb, FCPA Digest: Recent Trends and Patterns in the Enforcement of the Foreign Corrupt Practices Act, Shearman & Sterling LLP, January 2011.

Andrew Weissmann & Alixandra Smith, Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act, U.S. Chamber Institute for Legal Reform, November 2010.  

Mike Koehler, The Façade of FCPA Enforcement, November 2010.  

Alex J. Brackett & J. Patrick Rowan, Taking Your Medicine: Navigating Industry-Targeted Enforcement of the Foreign Corrupt Practices Act, Washington Legal Foundation, November 2010.

Claudius O. Sokenu, SEC, Whistleblowing, and the Foreign Corrupt Practices Act, Washington Legal Foundation, October 2010 (video).

Amy Westbrook, Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act, September 2010.

Stanley Sporkin, Origins of the FCPA, ABA National Institute on the FCPA, October 16, 2006.

Stanley Sporkin, The Foreign Corrupt Practices Act - Then and Now, 12th Annual FCPA Conference, November 15-16, 2004.