AS/COA Foreign Corrupt Practices Act Panel
(Photo by Angelito Jusay)
Frank Holder, Chairman of Latin America, FTI Consulting
Joan E. Meyer, Partner, Baker & McKenzie LLP
Thomas O’Brien, Partner, Litigation Department, Paul Hastings
Christopher Sabatini, Senior Director of Policy, Americas Society/Council of the Americas; Editor-In-Chief, Americas Quarterly (Moderator)
AS/COA hosted a June 25 panel of leading experts to discuss Foreign Corrupt Practices Act (FCPA) compliance and risk factors in Latin America. The conversation focused on legal regulations and corporate responsibility. Panelists analyzed the recent progress and setbacks of FCPA enforcement by the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC).
Paul Hastings’ Thomas O’Brien opened the panel by offering a contextualized view of the advancements and challenges of current anti-corruption regulations throughout the region. He argued that in an increasingly interconnected global economy, there is no place in the world that can operate without facing such constraints. More than half of the companies against which cases have been filed are third parties that do business with U.S.-based corporations in foreign countries.
Historically, U.S. companies, which are restricted by domestic anti-corruption regulations, have complained about the uneven playing field in the international market. Foreign companies make it difficult to compete for those companies that are bound by the regulation. O’Brien argued that although regulation and enforcement is coming predominantly from the United States and Europe, significant strides are being made at the international level. He highlighted the recent Brazilian protests as an example of a local push against corporate and political corruption that has captivated a global audience.
Corporate Best Practices Procedures
Joan Meyer from Baker & McKenzie LLP continued the discussion by highlighting the short-term and long-term effects that FCPA litigation has had on non-compliant multinational corporations. She argued that FCPA legal cases have a deep impact on a company’s reputation, even issuing corporate “death sentences” in some cases. Non-compliant businesses face unhappy investors, diminished profits, and reluctance from potential partners. Companies that have been most successful in salvaging their reputations after being flagged by the DOJ are those that remedy their past infractions by implementing corporate responsibility procedures.
The panelists agreed that over the past few years, they have seen more Best Practice Compliance programs emerge, especially from companies in Latin America. Rather than merely offering lip-service to FCPA regulations and enforcement, as was the case in the past, companies are now taking the regulations seriously and making an effort to comply. The panelists agreed that autonomous internal review boards are the most effective form of compliance and accountability. Joan Meyer strongly advised, however, that compliance boards and initiatives should incorporate executives. She argued that executives should be cautious of any red flags in contracts, especially during multi-country mergers and acquisition proceedings. The most common form of corruption, according to the speakers, is the systematic use of bribes and job perks at the lower levels. Although they rarely find the “smoking gun” condoning these practices in the hand of the higher executives, prosecutors use these documented red flags as evidence that the executives “should have known better.” FCPA regulations hold corporate executives accountable not only for their own employees, but also their vendors, suppliers, and other third-party partners. It is in their best interest, argued Meyer, to ensure their companies’ and their partners’ compliance.