A high-level U.S. Department of Justice official said Tuesday that prosecutors are committed to wrapping up old Foreign Corrupt Practices Act cases and investigating new ones more quickly.
"My intent is for our FCPA investigations to be measured in months, not years," said Trevor McFadden, the Justice Department Criminal Division's acting principal deputy assistant attorney general, in what likely was heartening news for general counsel.
"We expect cooperating companies to work with us to prioritize internal investigations and to respond to fraud section requests promptly to ensure there are no unnecessary delays."
The average FCPA case takes more than four years to resolve, and at least one, Wal-Mart Stores Inc., has been lingering for nearly six years. McFadden spoke at the Anti-Corruption, Export Controls & Sanctions Summit in Washington, D.C., an annual event sponsored by law and accounting firms.
If DOJ does speed up its investigations, that would be good news to general counsel and companies caught up in the multiyear, multimillion-dollar probes.
(Photo, left: Trevor McFadden, Acting Principal Deputy Assistant Attorney General with the U.S. Department of Justice Criminal Division. Courtesy photo.)
But Mike Koehler, a law professor at Southern Illinois University School of Law, writing in his FCPA Professor blog, says others at the DOJ have promised speedier processing before, with little success.
FCPA lawyer Audrey Ingram, a partner in the Washington, D.C., office of Richards Kibbe & Orbe, tended to agree.
"I'll believe it when I see it," Ingram said of the prospect of shorter investigations.
For the most part, McFadden's talk followed the usual DOJ line: the high cost of corruption to companies and countries, the government's determination to continue enforcing the FCPA, the desire to see more companies voluntarily disclose wrongdoing, and the intention to go after individuals.
But Ingram found especially noteworthy McFadden's three references to "leveling the playing field," especially regarding DOJ's international reach.
"Indeed, there has been growing international recognition of the need to disrupt corrupt payments in order to create a level playing field in the global marketplace," McFadden said.
"I think he's saying there is going to be a broader interpretation of the jurisdictional reach of the FCPA," Ingram explained. "There'll be a focus on foreign companies and individuals who take advantage of the U.S. market."
McFadden opened his speech with a reference to his four years in private practice at Baker McKenzie between stints at DOJ.
"Having worked regularly with general counsel and corporate executives, it is clear to me that the vast majority of international businesses and business leaders want to get compliance right," he said.
"This is quite impressive to compare the status quo to when the FCPA was enacted 40 years ago, when bribing foreign officials in order to gain business advantages abroad was often considered a routine business expense."
The status quo may not be as rosy as McFadden thinks. In a recent EY survey of Europe, Middle East, India and Africa, three-fourths of corporate board members and senior managers said they could justify unethical behavior if it would help their business survive. And 27 percent said using bribery to win contracts is a common practice in their business sector.