The global marketplace and increased international business exposure are catalysts in the growing instances of Foreign Corrupt Practices Act (FCPA) investigations and prosecutions. In plain terms, the FCPA is fashionable. A side effect of this growth is the explosion of international eDiscovery and the complications that follow suit…data privacy concerns, collection issues, experienced cross-border vendors, the challenges of foreign language review as well as sophisticated technology and workflow processes.
A recent report by the Texas Public Policy Foundation (https://www.texaspolicy.com/press/tppf-releases-reforming-foreign-corrupt-practices-act) explores the substantive issues with interpreting the Act and doing business in culturally-different jurisdictions. In addition to addressing the overall ambiguity in assessing business practices in other countries with a “blunt Western sword,” it also cites lost corporate opportunity as a secondary implication of the Act.
I continue to believe that FCPA-related discovery presents a huge opportunity for law firms and eDiscovery vendors because few providers or firms are effective/efficient resources for clients defending against anti-bribery charges. However, what is an opportunity for legal services is a huge drain on corporate legal departments and that should be a component of the conversation evolving in media recommending changes to the Act.
As legal practice and jurisprudence strive to balance litigation with fairness, remuneration and social/business integrity (e.g. history behind the amendments to the FRCP), current analysis has failed to consider the significant discovery costs associated with FCPA investigations. Carter-era macroeconomics was defined by a much-changed playing field where American, global, corporate giants could dramatically impact the intersection between mercantilism and diplomacy. Similarly, discovery requirements and costs have exploded in the past 20 years. Acknowledging the anti-American effect of bribery, FCPA investigations may need to evolve to “judiciously” balance cost, impact, fairness and economics.