By Mary B. Jacoby | March 20th, 2013

In November I appeared on a panel about the media at the American Conference Institute’s 28th National Forum on the Foreign Corrupt Practices Act at National Harbor outside Washington.

As a 20-year veteran of daily newspapers, I was asked to give my view of how companies with FCPA issues can expect to be covered these days. I told an anecdote about being a reporter at the Wall Street Journal in the mid 2000s and suggesting the paper follow the foreign bribery statute full time.

Editors weren’t much interested back then.

Now, following Wal-Mart, there’s something of a media frenzy to come up with the next big FCPA story. On the panel I noted that companies that disclose any FCPA probe at all can expect to be written about somewhere – not the least in Just Anti-Corruption, which publishes all such disclosures from Securities and Exchange Commission filings.

But if you’re a household name company and have an FCPA matter – no matter how relatively insignificant – watch out!

Case in point is the prominent B-1 section displays today in the Wall Street Journal and in the New York Times of the story, first reported by the Journal on Tuesday, that Microsoft Corp. is under U.S. scrutiny following a whistleblower allegation about conduct in China and elsewhere.

It’s a legitimate story and not easy to nail down, so kudos to the reporters (both Main Justice-trained alumni) for getting it.

But ….. how should it have been played?

The pedestrian details of the Microsoft case apply to any number of big global tech companies that are technically “under investigation” as we speak, but — like Microsoft – haven’t disclosed the matters in securities filings because they’re deemed to be relatively immaterial to their overall operations.

That’s where news judgment of editors should come in but doesn’t, because of the aforementioned frenzy to find FCPA stories. Editors don’t have the context to know when an FCPA matter is a big deal and when it’s not.

They just hear “FCPA” and ______ (insert household-name company here) and that’s all that’s needed to get the juices flowing. And reporters are keen to bask in the glory of breaking a story that their competitors have to follow.

Companies fuel this coverage by not disclosing the probes in their securities filings – thus creating the conditions for a “scoop” that ensures that when the issue does emerge, it generates more damaging headlines than it otherwise would have. See: “Did Microsoft Bribe Foreign Governments for Software Deals?”

Some FCPA stories are truly sensational – think News Corp., Las Vegas Sands, Wal-Mart Stores Inc..

But with Microsoft we have a mature $236 market cap global company already spending millions on a compliance department with some 170 employees working on matters including FCPA.

An apparently disgruntled former representative of the company – after making allegations the company investigated and decided were without merit in 2010 – then apparently goes in through the SEC whistleblower program and starts the process over again. (See Microsoft’s response here.)

The SEC and DOJ look into the matter – hence the “investigation,” a term that used to pack some wallop when it wasn’t a procession of companies just submitting their own probes to be evaluated by authorities.

So unless there is evidence of a deliberate cover-up, as we saw at Wal-Mart, the story really should have gone “inside” and not on one of the section fronts. (Not that in the electronic age the display in the physical paper matters much anymore, but it does signal the importance editors place on a story).

Companies like Optimer, NCR Corp., Net 1 and Teva Pharmaceuticals are also under FCPA investigation – but no one knows their names, so they don’t make the front pages.

At some point, you have to ask yourself whether the bigger news in the Foreign Corrupt Practices Act world is which big multinational company isn’t under FCPA investigation of some sort?

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By Mary B. Jacoby | October 14th, 2012

There is no Justice Department guidance on the Foreign Corrupt Practices Act yet, despite a report that it would be released in advance of an Oct. 10 meeting of the Organization for Economic Cooperation and Development anti-bribery working group in Paris.

We’re not surprised.

What incentive does the DOJ have to release it, when delay has worked so brilliantly to stave off congressional action to amend the 35-year-old foreign anti-bribery statute?

Next month, it will be precisely one year since Justice Department criminal chief Lanny Breuer announced that guidance on compliance and prosecutions would be forthcoming. The only deadline Breuer gave for its release was sometime in 2012. It’s our understanding that the guidance — essentially a collection of judicial ruling precedents and principles already articulated through FCPA settlements and Justice Department speeches — was completed last spring. So it’s just been sitting around. Why?

We suspect the reason for the delay is Congress. By running out the clock on the current congressional session, the Justice Department has ensured that no reform legislation would move forward this year. And next year, a new Congress will be in sworn in, meaning the tenuous bipartisan coalition that had seemed to be forming in favor of amending the FCPA might no longer exist.

Indeed, Sen. Amy Klobuchar (D-Minn.), who made early noises about the need for reform — and whose support was essential to give any legislation the necessary bipartisan cooperation to move forward in a divided Congress — told Just Anti-Corruption way back in February that she intended to wait for the guidance before deciding whether statutory amendments were needed.

Since then, the Wal-Mart Stores Inc. story erupted, as well as the Las Vegas Sands probe. After those cases, who in Congress wanted to be seen as “supporting foreign bribery?”

But the truth is that any proposed amendments were dead before the New York Times’s expose of Wal-Mart’s operation in Mexico was published in April.

That doesn’t mean proponents of changing the statute have given up, as Just Anti-Corruption recently reported. Amending any statute in Congress can take years of work.

As Just Anti-Corruption noted in an analysis of the 1988 amendments to the FCPA, it took some eight years before the first proposals to amend the FCPA, which started flying not long after the 1977 statute was enacted, finally came to fruition. And even when the statute was amended in 1988, business interests still didn’t get a whole lot of what they were asking.

Business raises a lot of legitimate issues about FCPA enforcement that are part of larger questions about the general trend toward “regulation by prosecution,” which we have documented.

But from a U.S. policy standpoint, there are just as good reasons not to be perceived on the international stage as pulling back on corruption enforcement. The U.S. has treaty commitments, and has been the world’s leader in anti-corruption enforcement. Now that these efforts are gaining traction internationally, with other countries moving toward stricter enforcement, how would it look if the U.S. retrenched?

My prediction: We’ll see the guidance either next month, during the big American Conference Institute FCPA conference near Washington at which Breuer announced last year that it was forthcoming; or we’ll see it sometime around Dec. 31.

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By Mary B. Jacoby | April 30th, 2012

Among News Corp.’s Foreign Corrupt Practices Act troubles is a reported FBI investigation into whether the company bribed local officials in Russia to secure prime placements of billboards it owned under a subsidiary, News Outdoor Russia.

It strikes me that any investigation would need to go to the very top – to Russian President Vladimir Putin.

News Outdoor Russia reportedly put Putin’s images free of charge on its billboards – providing an obvious political benefit to Putin and perhaps crossing the line into an FCPA violation.

The New York Times reported that in 2008, News Outdoor Russia was under pressure for a claim of back taxes in Russia that was eventually resolved. That same year, the company reportedly put a large banner on a building near Red Square with Putin’s face on it without charge, the Times said, citing the RBK business newspaper as its source.

And News Corp.-owned space in St. Petersburg was used last year to display advertisements for the People’s Front, a Putin-backed political group.

Yet, none of the reports on the matter seem to connect the free publicity for Putin to the reported FCPA probe. While I don’t have any inside information, it seems logical to assume the connection is under scrutiny.

The Russia investigation reportedly grew out of the FBI’s scrutiny of bribes paid by News Corp. journalists to police in Britain for stories. The FCPA prohibits payments to foreign officials to advance business purposes.

The News Outdoor Russia business was sold last year to a consortium of investors led by a Kremlin-controlled bank. News Corp. last year declined to comment to the New York Times about its freebies to Putin.

In written responses to questions from the Wall Street Journal in March, News Outdoor Russia said it hadn’t been contacted by the FBI, wasn’t aware of any bribery investigation and that it has always conducted its activities within Russian law.

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By Mary B. Jacoby | November 30th, 2010

A Senate Judiciary subcommittee held an oversight hearing on the Foreign Corrupt Practices Act Tuesday, the surest sign yet that the Justice Department’s ramped-up enforcement is becoming a domestic political issue. And not in the way the DOJ would like.

Senators don’t just schedule hearings because they feel like it. Someone’s asking them to do it – in this case, I would wager the U.S. Chamber of Commerce is behind it.

Sen. Amy Klobuchar (D-Minn.) said at the hearing she’s heard complaints from Minnesota companies about a perceived lack of guidance from the Department of Justice on how to comply with the law. (Click here to read our story about it.) When big multi-nationals start lobbying their members of Congress on the FCPA, the law enforcers will eventually feel the pressure, if they already haven’t.

Criminal Division chief Lanny Breuer and other officials have made forceful speeches about the costs of letting bribery flourish in international business transactions. But these principles may seem abstract to companies spending tens of millions on internal investigations, corporate monitors, lawyers and fines.

They may also seem unfair when other parts of the U.S. government have sanctioned bribery for national security purposes (ie: the James Giffen/Kazakhstan case.)

The law enforcement community has its own reasons to keep vague such standards as what constitutes an “adequate procedures” or compliance defense. It wants maximum flexibility to pursue cases and make individual judgments based on specific facts.

Still, it seems inevitable that the DOJ and SEC – perhaps under a future administration – will make some policy concessions to the business lobby, barring some new super-scandal that prompts public outrage. Is that really so bad?

What’s certain is that as the FCPA’s profile is raised, and the costs of compliance mount, political pressure will continue to build. The U.S. Chamber is an enormously wealthy and influential opponent, whose political heft has been greatly amplified by the U.S. Supreme Court’s ruling in Citizens United lifting Watergate-era limits on corporate political spending and gutting disclosure requirements.

The 1977 FCPA is also a Watergate-era law. If the policy makers who genuinely believe that corruption is a scourge want to keep this tool, they might be wise to adapt it. Otherwise, the Roberts court might get a hold of it. And we know what that would mean.

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By Mary B. Jacoby | August 12th, 2010

In June, I visited London and Paris to talk with European regulators about their approach to fighting corruption. Richard Alderman, the head of the U.K.’s Serious Fraud Office, was kind enough to sit down with me to chat about compliance in the United Kingdom.

You can read my full interview with Richard here, or check out the podcasts, which feature our discussion about the use of corporate monitors, self-disclosure and the U.K.’s new Bribery Law.

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By Mary B. Jacoby | August 11th, 2010

Today you’ll see a new look for Main Justice. We’re also debuting our new subscription site, Just Anti-Corruption.

The design changes are intended to help us make space for our growing white-collar legal coverage.

Although our Washington, D.C.-based publication will remain the top source for insider information about the U.S. Department of Justice, we will also be rolling out new sites devoted to specific practice areas. Our first is Just Anti-Corruption, offering complete coverage of the U.S. Foreign Corrupt Practices Act and international anti-corruption initiatives.

The Huffington Post and other national media followed our Main Justice scoop last year on Sen. Max Baucus's U.S. Attorney hopeful girlfriend.

Our sites are in “beta” mode, which means you’ll will notice some rough edges for a while. Please bear with us. And as always, email as us editors@mainjustice.com with your comments or suggestions.

Since launching Main Justice a little over a year ago, we’ve had tremendous response from readers. Clearly the legal community is hungry for better coverage of its players, issues, and its politics.

We’ve hit some remarkable milestones in our short history: We have 12,000 registered users, we serve an average of 650,000 page views a month (including 250,000 pages views inside the Beltway) and receive more than 70,000 unique visitors a month.

We’ve broken big national political stories, including our huge scoop last December about Montana Sen. Max Baucus’s recommendation of his live-in girlfried to be the U.S. Attorney in Montana. We led coverage of the New Black Panther Party voter intimidation allegations, producing more than 30 stories about the racially and politically charged case at a time when the Washington Post had to acknowledge it missed the story for lack of resources.

Main Justice founder and Editor-in-Chief Mary Jacoby was on the cover of American Journalism Review last month in a story about the changing face of Washington, D.C., news coverage.

Our one-of-a-kind U.S. Attorney’s chart is a huge success, garnering tens of thousands of hits a month from readers seeking the latest information on Obama administration appointments to the 93 U.S. Attorney offices around the country.

I want to thank our team: Managing Editor Leah Nylen, who holds this whole operation together; David Johnston, who covered the Justice Department for the New York Times for two decades and seems to know every lawyer in Washington; Andrew Ramonas, our U.S. Attorney’s expert and videographer; Chris Matthews, our indomitable FCPA beat reporter; and Aruna Viswanatha, a great reporter and elegant writer who covers the SEC and other anti-corruption related beats.

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About Mary B. Jacoby

Mary Jacoby is the founder of Main Justice and Editor-in-Chief of Just Anti-Corruption.


FCPA Master: Joe Warin of Gibson, Dunn & Crutcher LLP. Warin accepts an award at the 2013 Main Justice Best FCPA Lawyers Client Service Awards luncheon for lifetime achievement in the Foreign Corrupt Practices Act bar.

USDOJ: Criminal Division News  
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