One of the things there is a dearth of in the Foreign Corrupt Practices Act world is corporations going to trial. This has led to a veritable lack of judicial interpretation of the law in its 39-year history. While there are a couple of significant courts of appeal that have weighed in on interpretations of the law, there are only a small number of such decisions which lawyers and compliance practitioners can point to as established legal precedent when discussing the law with clients. This lack of case law interpretation has led to an FCPA common law created by Justice Department interpretation as expressed in FCPA enforcement actions and the FCPA guidance. While there are many reasons for this lack of a body of trials, the fact is that almost all corporations settle rather than take the government to court.
The Man From FCPA has been one of the leading commentators on why it is not in a company’s interest to go to trial. The reasons are multiple including that corporations stand to lose in the court of public opinion and the uncertainty of a result at trial. Of course there is always the dreaded Arthur Anderson effect where that entity went to trial and lost; then the company ceased to exist. Of course, the guilty verdict was overturned but the damage was long done by the time the Supreme Court overturned the trial court verdict.
However there was recently an event, the first FCPA Mock Trial Institute, sponsored by the ABA, which put on a mock FCPA trial, with former prosecutors and white-collar defense counsel, all overseen by a former federal district court judge. The biggest impression for The Man From FCPA was that it was simply that—a trial. Indeed going to trial is something companies do on a routine basis and large corporations have trial departments where their job is to do just that; prepare for and go to trial. So perhaps corporations need to reconsider this no trial in FCPA cases. Because after all, it is just a trial.