Public company scrutiny under the FCPA

The FCPA consists of two basic parts; the anti-bribery provisions and the accounting provisions. Under the accounting provisions, there are two prongs: (1) the books and records requirement that a company’s financial statements must accurately reflect its finances and (2) effective internal controls. The accounting provisions, on the civil side of things is enforced by the Securities and Exchange Commission, while the Justice Department polices the criminal portion of the anti-bribery provisions. The accounting provisions are governed under the most basic of all U.S. securities laws, the Securities Act of 1934 as amended.

That is a very long way to introduce the subject of Uber specifically and U.S. public companies more generally. One of the key, if under-appreciated, features of the FCPA is that the accounting provisions enforce discipline on companies that desire access to U.S. capital markets through IPOs or stock offerings. If Uber ever does go public, perhaps some of the worst excesses of its CEO Travis Kalanick and his self-imposed buzz saw culture at Uber might be tamed by the requirements of accurate books and records and effective internal controls.

Even if the tone Kalanick sets as a public company is still his win at all cost persona, the market will step in to sanction him through drop in share prices. Minority investors with voting rights, truly independent directors forming a stronger board, and activist shareholders can also bring a form of discipline and clarity to end the current cultural miasma at the company. While it may well take time for true cultural change to set in on the company, the steady drip, drip, drip of untoward news might move to something less than what we all have observed over the past few weeks.

There are those who rail against the enforcement of U.S. securities laws, as they amended by the FCPA. However they exist to protect shareholders from incorrect financial statements and from companies which do not have effective internal controls. Perhaps the SEC should use this tool more often.