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The end of the compliance defense debate

Tom Fox | January 23, 2018

Over the years, there has been a siren’s call for the addition of a compliance defense to the FCPA. This call has argued that if a company had a compliance in place, it should receive a free pass for FCPA violations engaged in by the company’s employees. Just as the sirens who tempted Ulysses were illusionary beauties, however, the arguments for a compliance defense were ill-advised, unworkable in practice, and not based on any data to support their advocates’ claim that they would actually lessen the global scourge against bribery and corruption. 

The FCPA Corporate Enforcement Policy has sounded the death-knell of this misguided call for a compliance defense. The protocol set up by the Department of Justice is creative and unique in federal criminal law enforcement. The enforcement aspects, coupled with the incentives provided to corporations and the detailing of best practices, are...

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