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Published judicial decisions interpreting it are sparse, largely because the FCPA was not vigorously enforced until recently and that enforcement has largely focused on corporations, which generally cannot undertake the life-or-death risk inherent in aggressively defending a felony criminal case. As a result, right now the FCPA essentially means whatever the government says it means.
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.
Read NACDL's Coalition Letter to DOJ & the SEC on "Guidance Concerning the Foreign Corrupt Practices Act" and NACDL's Congressional testimony on the need for FCPA reform. Additional resources on the FCPA are available below:
Pictured above: NACDL White Collar Crime Policy Director Shana-Tara Regon testifying before the House Judiciary Crime Subcommittee on June 14, 2011, on the need for FCPA Reform.
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