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Given the lineup of speakers, we had some inkling of what to expect from Tuesday’s Senate Judiciary Committee hearing on Foreign Corrupt Practices Act enforcement. We knew lame duck committee chairman Arlen Specter had previously pushed for tougher criminal penalties for individuals in high-profile bribery cases, and we figured the Mayer Brown and Jenner & Block partners invited to testify would push for changes in the statute and its application that would benefit their clients. But we were nonetheless surprised at the grilling Sen. Specter gave Greg Andres, the Justice Department’s acting deputy assistant of the criminal division. After Andres listed some impressive statistics detailing the DOJ’s two-year-old enforcement frenzy–including Justice’s collection of more money in criminal fines than in any other period since the FCPA was adopted in 1977–Specter kept asking him the same question: Who’s gone to jail? Andres told the committee that the DOJ has charged more than 50 individuals in connection with FCPA violations since January 2009, but that didn’t impress the Senator. “I’ve heard about charges, but come to my question,” Specter demanded. “Who’s gone to jail?” Even after Andres pointed to a half-dozen prosecutions that have resulted in prison sentences, Specter refused to let up, expressing disbelief that the DOJ’s FCPA case against Siemens–which netted $1.6 billion in civil and criminal penalties in 2008–didn’t lead to any individual prosecutions. The fines, he said, we just a drop in the bucket for a huge company like Siemens. Specter’s preoccupation with jail sentences continued during the testimony of the invited speakers. When Butler University professor and FCPA Professor blogger Mike Koehler said that he’d studied the Siemens case in detail, Specter secured a promise from Koehler to work with the Judiciary Committee to “see if we can get answers” as to why the DOJ hadn’t handed out any indictments. Koehler also criticized FCPA enforcement, noting the “undeniable fact [that] in even the most egregious cases of corporate bribery, the DOJ does not charge FCPA anti-bribery violations.” Koehler also questioned the wisdom of the government awarding companies like Siemens huge government contracts after prosecuting the very same companies for flaunting anti-bribery laws. The big-firm lawyers who testified, as we expected, pushed for amendments to the statute or changes in the Justice Department’s FCPA enforcement efforts that would clarify compliance requirements for their clients. They also called for greater leniency for companies that make good faith compliance efforts. Jenner & Block partner Andrew Weissmann, appearing on behalf of the U.S. Chamber of Commerce, rehashed some of the changes to the FCPA he advocated on behalf of the Chamber in a proposal last month. Chiefly, he said, companies should be able to advance an affirmative defense when they have “rigorous internal compliance” measures but rogue employees circumvent those measures. In addition, Weissmann said, the statute should be amended to specify who counts as a “foreign official.” Michael Volkov of Mayer Brown testified that the DOJ should adopt a limited amnesty program, based on proposals advanced by retired judge Stanley Sporkin of the U.S. Court of Appeals for the District of Columbia, for firms that institute stringent self-compliance measures and report possible violations in good faith. After the hearings we spoke to Joseph Spinelli, retired FBI agent who formerly investigated FCPA cases for KMPG and now advises clients on white-collar issues for Navigant Consulting. He’s pushing for many of the same FCPA reforms advocated by Judge Sporkin and the Chamber of Commerce, accusing the government of treating the law as “a cash cow” and complaining that his clients are running themselves ragged trying to comply with ambiguous legislation. But isn’t it a good thing, we asked, for companies to take bribery more seriously? “The fact of the matter is that you cannot expect the corporate world to respect the law if they aren’t provided direction and clarity,” Spinelli said. “If you don’t provide that guidance, you can’t get that cooperation.”

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