Yesterday, Benjamin Kessler wrote a stirring defense of what he called “one of the most altruistic FCPA amendments yet proposed:” adopting a system to share the proceeds of FCPA settlements with the victims of bribery. The idea comes from Nigeria's Socio-Economic Rights and Accountability Project.
The post brought me back to a conversation I had a few years ago, while conducting anti-bribery research in India.
Sitting in an upscale Mumbai cafe, across from the Indian partner of a Big Four accounting firm, I could see through the window evidence of both new wealth and chronic poverty. That's Mumbai. We were talking about the FCPA.
“So,” she said, “the U.S. is finally prosecuting companies for paying bribes in countries like India.”
“Yes,” I said, “it most certainly is.”
“And the DOJ will come in, find evidence of bribery, and slap the company with heavy fines.”
“Indeed,” said I. “The fines can reach in the hundreds of millions of dollars.”
She asked, “So where does that money go?”
"Straight to the U.S. Treasury.”
"Who does that help?” she said.
I had no idea what to say.
I have rehashed that conversation dozens of times since. Maybe I should have said something about general deterrence? But it would have seemed to that accountant a useless abstraction. It sometimes seems that way to me. Can we not come up with something better? Something more specific, more direct?
Maybe we can. Maybe SERAP just did. And maybe it's not unprecedented, even in the FCPA context. We'll explore this idea -- its past, its present, and its future -- in subsequent posts.
Andy Spalding is a contributing editor of the FCPA Blog. He teaches international business law at the Chicago-Kent College of Law. Effective June 1, he’ll be an Assistant Professor at the University of Richmond School of Law.