"Coverage or Crime?"Washington Lawyer
James Tillen discusses the potential FCPA liability faced by New Corp. as a result of the News of the World scandal. Tillen says the facts in the News Corp. situation are "one step removed" from a typical case brought under the statute. "In a typical case, the payment to the official is for the official to take an action that directly financially benefits the company," says Tillen. "This case involves paying police to get information, then that information is used for a news article. The argument would be that the news article could lead to additional sales." But Tillen says the defense could argue that the statue was not intended to cover this type of conduct. "There could be arguments that this payment was simply for information," he adds.
Tillen, however, points out that the accounting provisions of the FCPA require publicly listed companies to maintain accurate books, records, and internal controls. The accounting provisions are written "much more broadly" than the anti-bribery provisions, he says. "Those requirements would be applicable not only to News Corp., but also to its subsidiaries, Tillen says. "If they didn't record payments to the people who assisted in the hacking, this could be considered an accounting provision violation. And the fact that this activity appears to have gone on suggests that the company did not have sufficient internal controls."
Typically, Tillen says anti-bribery allegations result in criminal charges, while accounting provision violations result in civil charges, with the SEC working in coordination with the DOJ. "The reason there may be more of an appetite for accounting provision civil charges is the standard of proof is much easier," Tillen says.