In terms of the FCPA, it is not uncommon for companies to raise questions as to whether and, if so, what policies will change with a new administration after a presidential election in the United States. In light of the election of Donald Trump, this question is being raised with respect to the FCPA in light of campaign promises associated with less regulation and the repeal of the Dodd-Frank Act.
The simply answer is that no one knows for sure. If history is any guide, major changes should not be anticipated. Criminal enforcement by the U.S. Department of Justice has steadily increased over time, regardless of whether a Democratic or Republican administration was in office. The SEC has actively enforced the accounting and record-keeping provisions from the very beginning. Though the SEC did not actively enforce the FCPA’s anti-bribery provisions for many years, that changed in the latter part of the Clinton administration and has steadily increased through subsequent Republican and Democratic administrations.
A host of unforeseen factors often come into play that may bear on enforcement policies. That was certainly the case in the early part of the administration of George W. Bush with the Enron and WorldCom accounting scandals. The criminal penalties for record-keeping violations were dramatically increased. A five-year statute of limitations must also be kept in mind. And then there is always lurking in the background the prospect of civil litigation under a range of legal theories.
Moreover, slackening compliance efforts may expose a company to enforcement activities from other jurisdictions. An increasing web of overlapping anti-bribery statutes are now being actively enforced. Whether it be the UK Bribery Act, Canada’s Corruption of Foreign Public Officials Act, Brazil’s Clean Companies Act, or the anti-bribery legislation in a host of other jurisdictions, anti-bribery prohibitions from other jurisdictions may extend to the activities or operations of companies subject to the FCPA.
Maybe the most overlooked yet most critical consideration in giving less attention to anti-bribery compliance issues is putting a company and those acting on its behalf at risk in a host country. A very real prospect always exists of being subject to an investigation and prosecution by the foreign jurisdiction. This is a very serious and practical consideration that must never be overlooked regardless of how actively the FCPA is being enforced.
