James Kevin Wholey Authors Article for Special Post-Election Capitol Edition of Global Coverage

Foreign Corrupt Practices Act

In a 2010 CNBC interview, now President-elect Trump termed the Foreign Corrupt Practices Act (FCPA) “[a] horrible law, and should be changed” which “puts U.S. businesses at a huge disadvantage.” Whether this is a considered view or just a reaction to a particular enforcement action (the statement was in response to the seemingly limitless Walmart investigation) is uncertain. But since his election, some have predicted a sharp decline in FCPA enforcement actions.

That seems unlikely. Over 60 percent of corporate enforcement actions originate with voluntary disclosures – many of them in effect mandated by the requirements of Sarbanes Oxley, which requires regular assessment and reporting by listed companies regarding internal controls and financial statements. The SEC is not going to fail at least to review and preliminarily investigate these disclosures. So, to begin with, a fair number of FCPA enforcement actions would seem to be “baked in” to the Securities laws.

President-elect Trump is an experienced international businessman and likely more familiar with the FCPA than most new national leaders, but none can say what place it holds on his daunting list of priorities. Likely more relevant will be the approach embraced by his appointees to the offices that enforce the statute. Names have yet to come forward for the pivotal posts of Securities & Exchange Commission (SEC) Chair and its Director of Enforcement. Senator Jeff Sessions of Alabama has been nominated for Attorney General (DOJ shares enforcement authority for the Act with the SEC).

As U.S. Attorney and Attorney General (AG) in Alabama, Sessions had a strict law-and-order reputation; interestingly, however, as a member of the Senate Judiciary Committee, he has repeatedly expressed concerns about Federal settlements and dispositions of potentially criminal matters via administrative processes, rather than being put to proof in an Article III court. If he were to continue to pursue these concerns from the position of United States AG, it could significantly affect the approach taken by the enforcement agencies which have of late been increasingly focused on obtaining deferred prosecution agreements and similar resolution vehicles without recourse to litigation before a judge. Assuming the Senator is confirmed, that may well be worth some attention.