Let me start by saying that I disagree with Prof. Mike Koehler about 95% of the time. That’s not to say he’s wrong; he rarely is. It’s just that he and I have widely disparate views on enforcement, and we read the same facts in different ways. Because of that, we almost invariably come to different conclusions. But reasonable people can disagree, and the Professor is always reasonable.
This is not that. We’re squarely in the 5% here. I found myself nodding in agreement throughout my reading of his post on “Addressing the ‘Luncheon Law’ Nature of the FCPA.” Even within the post, however, I disagree with some of Prof. Koehler’s conclusions. But his thesis is dead on.
To briefly recap his post, he feels that the current practice of DOJ and SEC officials speaking at sometimes pricey conferences is, if not an outright conflict of interest, somehow anti-democratic. Certainly it’s not praiseworthy. It leaves practitioners with too little guidance publicly, and freely, available. And we can all get behind the idea that it’s not how we want law, policy, or even best practices to develop, on the lecture circuit.
I agree with one part of this: while I don’t agree that it’s a conflict or otherwise even remotely improper, I do agree that it’s not how we want the Department to inform us of trends.
I feel for the single practitioners and small-firm lawyers out there. These things are expensive. One of the reasons I started speaking at conferences, frankly, was that they waive the entry fees for speakers. And I’ve either been a regulator or worked for huge corporations that have budgets for this kind of thing. Budgets that I wasn’t responsible for. When I was in-house, I never was told, “it’s too expensive.” But even I choked a little bit seeing the price tag for this year’s ACI conference. I’m still trying to figure out a way to bribe Matt Kelly to get me into Compliance Week this year at a discount.
I used to go to these conferences with the expressed purpose of “reading the DOJ tea leaves for this season.” The “used to” in that sentence is important, but we’ll get to that in a minute. Because “reading the tea leaves” was a crucial part of my risk assessment process. That’s a pitiful state of affairs, but there you are. During that period, several years ago, there really wasn’t anywhere else to go. I would reach out to fellow in-house practitioners and benchmark all the time, and I’d follow Mark Mendelsohn around like a puppy looking for scraps. It was a little sad, really. I know I’m a bit of a geek, and I know Mark Mendelsohn ain’t the Grateful Dead. But there I was, an FCPA Mendelhead. Back then, there was no SEC vertical unit for FCPA prosecution, and Cheryl Scarboro wasn’t nearly as well known as she is today, except to those illuminati like Martin Weinstein and Dan Newcomb, who were doing multiple self-disclosures. She was the unofficial head at SEC, but not as visible.
The nice thing was that Mark and others would throw scraps out. I remember this gem, “people have to realize that the FCPA isn’t fun and games, it’s a federal crime and people have to go to jail.” Don’t think that quote didn’t end up in every presentation I gave. I heard about the idea of industry sweeps at a conference, the push into the tech sector, the push into individual prosecutions, the evolving ideas of when to self-disclose, and current expectations around due diligence, all at conferences.
As I said before, that’s no way to run a railroad. A practitioner’s ability to learn the current state of the law for FCPA compliance shouldn’t cost that attorney the entry fees that conference organizers charge. Not to mention the travel, lodging, food, and other expenses that accrue on a three to four-day trip.
But all this was years ago. I don’t think the same argument could be made today. Well, the conference fee and expense argument can still be made: they’re still really, really expensive. But I don’t think anyone can argue with a straight face that they can’t learn—from free, publicly-available resources—the current state of FCPA law and compliance. Let’s just go through a few of those, shall we?
First, there’s the DOJ Web site, including the Layperson’s Guide. Every opinion release is available for download. When I was first starting out in this space, I took an afternoon and read every single Opinion Release. You’d be absolutely amazed how much is in there.
The TRACE compendium is free—every FCPA case ever is available to read and analyze. TRACE’s publicly available resources are staggeringly useful.
Several law firms have been incredibly generous—Shearman & Sterling is at the top of that list—in making serious pieces of research available to the public, for free: The FCPA Digest is a must-download. I don’t care how many pages it’s up to now, it’s worth the paper and ink. If you don’t think I have a copy, you’re crazy. Many FCPA-savvy firms have similar client briefs available to the public: Gibson Dunn and Miller Chevalier are two good ones. But there are so many others I hesitate to even begin to list them here.
My This Week in FCPA colleague, Tom Fox, reminded me on this week’s episode that compliance advice goes back as far as Opinion Release 04-02. That’s 2004. I think it goes back farther, to the Metcalf & Eddy documents, but I have to check that, I might be mis-remembering.
Plus, we have an expanding group of writers—I call us the “commentariat”—that write almost exclusively on the FCPA. For straight-up compliance advice, I don’t think there’s anything that beats Tom Fox and Mike Volkov. Delve into their archives and you’ll have everything you need. For the UK Bribery Act, bookmark Barry Vitou’s and Richard Kovalevky’s “The Bribery Act.” You can also look at Chadbourne’s site on that—truth be told, however, no matter how much I love those guys (and Heidi) at Chadbourne, their site comes in second to Barry and Richard’s.
Even as I disagree with Prof. Koehler, I acknowledge that he’s probably the most knowledgeable guy in the world on the history of FCPA law and enforcement. Maybe if you put Mark Mendelsohn, Chuck Duross, and Peter Clark in a room, they’d be his equal. Maybe. For current information, there’s the Godfather of FCPA blogs: Dick Cassin and his FCPA Blog. He’s literally the Godfather: we all pay him protection money. Kidding. Sir, really, I was kidding.
Plus, there are a number of books about FCPA compliance. I have a few on my bookshelf, and I reference them all the time. [ed note: I’m on the Amtrak to DC now, but when I get back home I’ll update this post with the titles]. I just bought Mike Volkov’s book: if you’re interested in FCPA compliance, it’s a must-buy.
Not to pile on, but DOJ lawyers aren’t silent when they’re not at conferences. They are constantly communicating with the public through their language in DPAs, NPAs, and prosecutions. Schedule C—the compliance program explanation that I’m reviewing in a series on this very blog—is an invaluable guide to compliance. It’s a damn checklist, not to put too fine a point on it.
I agree some changes could be made. I once suggested to the DOJ that they publish on their website a schedule of speaking engagements where DOJ representatives would be speaking. But perhaps the DOJ should go further: they should absolutely prepare formal statements based on the conference presentations and publish them on their Web site. I would also get behind a DOJ mandate to conference organizers that if they want DOJ speakers, those sessions must be open to the public. [To all those conference organizers who read this and might consider having me as a speaker…I was just kidding about that].
To close, while I agree that “Luncheon Law” isn’t the state of affairs we want, I don’t think it’s the state of affairs we’ve got.
By the way, if you want to know what Charles Cain said about declinations, read the rest of the post Prof. Koehler links to.