Alison Frankel's got a great piece on the FCPA, with the following money quote re a possible case against News Corp:
... as a U.S. taxpayer, I'd rather the Justice Department spent my money investigating, say, mortgage-backed securitization than whether British journalists bribed British police officials for tips on British news stories. In an age of limited resources, I'm not convinced that our government should be bending and twisting the FCPA to make a case against News Corp, however sexy and high-profile that case would be.
As a US taxpayer, I'm convinced our government is grossly overusing the FCPA. Frankel's got an interesting take on why that's the case:
In a May 2010 article called The Bribery Racket, Forbes asserted that line prosecutors at the Justice Department cranked up FCPA enforcement in order to assure themselves of subsequent posh jobs in the private sector, defending corporations against bribery allegations.
At the time I thought Forbes was putting too malign a spin on FCPA prosecution. The record in the Lindsey and Africa sting cases, though, is disquieting. Defense lawyers in those cases portrayed a Justice Department so determined to win headlines that it brought unwarranted charges. And judges in both cases agreed that the DOJ bent and twisted the law.
We normally think that the key problem with regulatory agencies is that of "agency capture." Because of the revolving door between regulator and regulated, agencies are dominated by people who just came out of the regulated industry and/or plan to seek employment with the industry in the near future. Such regulators will not bite the hand that has fed/will feed them. So you get the agency taking it too easy on the regulated industry.
In the case of lawyers who plan to go to law firms rather than corporations when they leave government, however, setting a precedent for extensive litigation in their field of expertise ensures that they will have plenty of work when they go back to private practice.
It would be interesting to apply this insight to the SEC. What industries have captured the rule making process in the Divisions of Corporate Finance or Market Regulation? Do we nevertheless see those industries being subjected to vigorous enforcement by the lawyers in the Division of Enforcement.
I do real scholarship, not recreational mathematics, so I offer this idea up free of charge to some empirical "scholar" who needs a new number crunching project.
Social Media