"FCPA Flash -- A Conversation with Homer Moyer"FCPA Professor
In this podcast, Homer Moyer participates in a conversation with the FCPA Professor regarding the evolution of the U.S. Foreign Corrupt Practices Act (FCPA) over its history and recent FCPA enforcement trends and policies, such as the U.S. Department of Justice's (DOJ's) FCPA "pilot" program, increased emphasis on voluntary disclosure and growing use of disgorgement and forfeiture as penalties.
Although from a public policy perspective, the FCPA can be seen to be "a remarkable success," Moyer said, current enforcement trends have also introduced complications and raised a host of new issues. For example, multi-jurisdiction investigations, which have now become a reality, raise many new issues for the companies that are the targets of those investigations, from differing national enforcement practices to dilemmas created by national data privacy laws. The increased emphasis on voluntary disclosure, which is appropriate in certain circumstances, carries with it the risk that whether a company has made a voluntary disclosure could become more important than the merits of the case, or could inappropriately influence declination decisions. Similarly, developing strong "incentives" for voluntary disclosure could at some point become, as a practical matter, the equivalent of a mandatory reporting requirement, which Congress chose not to require and which enforcement agencies should not want.
Moyer also noted that the use of equitable remedies such as disgorgement is potentially subject to abuse if used as a vehicle for getting around the statute of limitations (on the theory that equitable remedies are not time-barred by the statute). Also, the IRS has just come out with guidance on the deductibility of disgorged profits that makes clear that the IRS and the SEC employ different, conflicting definitions of when disgorgement is "punitive," which could effectively subject companies to a double penalty, or give companies a new argument for limiting disgorgement. Finally, he identifies how both enforcement agencies and private counsel can, and should, avoid unnecessarily long and unnecessarily costly investigations.