Tuesday, February 07, 2012
Rupert Murdoch and the FCPA
The Foreign Corrupt Practices Act is a controversial federal statute that was enacted in 1977 and was intended to deter and reduce bribery of foreign officials for US business. It has contributed substantially to the number of deferred prosecution agreements (DPA's) that the federal government signs (usually) with large, publicly held corporations. Ordinarily, the corporation gets into trouble when one or more of its employees pays money to a foreign official in connection with the corporation's business transactions.
On those occasions when the government prosecutes the individuals responsible for violating the FCPA, the results can be mixed. For an example of a recent loss, you can see this juror's discussion at Mike Koehler's FCPA Professor Blog, which discusses how and why the government failed to secure convictions in a case that involved an undercover sting and ruse to bribe the defense minister of Gabon. The case had been considered pathbreaking because it involved an undercover sting; now, it may be pathbreaking because it involves a massive loss and the government is considering dropping its remaining prosecutions.
According to the conventional wisdom, FCPA convictions (at least conviction of those individuals willing to take the cases to trial) are difficult to secure because the underyling transactions are often complex and difficult to understand. Reasonable doubt abounds.
But that might not be such a problem if the government decides to go after Rupert Murdoch's News Corp. The company, which is headquartered in New York, is currently the subject of a number of investigations, here and overseas. Senators and Congressmen began calling for investigations back in July, and the FBI's FCPA investigation seems to be moving forward, as reported by Reuters today. The FCPA investigation relates to News Corp employees' payment of money to (British) police officials. Unlike most FCPA cases, I can't imagine jurors will have too much difficulty understanding the underlying transactions. Perhaps this is why News Corp hired Mark Mendelson back in July 2011.
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