In his testimony today before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, former U.S. Attorney General Michael Mukasey said the FCPA is hurting businesses and needs reforms that will provide clarity and guidance to the business community.
He appeared on behalf of the U.S. Chamber of Commerce, which has been campaigning to amend the FCPA.
Mukasey said, “Instead of serving the original intent of the statute, which was to punish companies that participate in foreign bribery, actions taken by the government under more expansive interpretations of the statute may ultimately punish corporations whose connection to improper acts is attenuated or, in some cases, nonexistent. The result is that the FCPA, as it is currently written and enforced, leaves corporations vulnerable to civil and criminal penalties for a wide variety of conduct that is in many cases beyond their control or even their knowledge.”
He outlined six changes the Chamber of Commerce wants to make:
(1) Adding a compliance defense;
(2) Clarifying the meaning of “foreign official”;
(3) Improving the procedures for guidance and advisory opinions from the DOJ;
(4) Limiting a company’s criminal liability for the prior actions of a company it has acquired;
(5) Adding a “willfulness” requirement for corporate criminal liability; and
(6) Limiting a company’s liability for acts of a subsidiary not known to the parent.
While the past decade, he said, has seen an extraordinary increase in the level of FCPA enforcement and investigation by the DOJ and SEC, "judicial oversight of such enforcement remains minimal.”
Mukasey served as U.S. Attorney General from November 2007 to January 2009. He was a federal district judge from 1988 to 2006 for the Southern District of New York.
A full copy of his House testimony today can be downloaded here.