Is the FCPA Unit Really Interested in “Transparency”?

June 12, 2016

By: Sara Kropf

For anyone who handles FCPA cases, the blog aptly titled FCPA Professor is required reading. Professor Mike Koehler covers all aspects of the statute, from reported court decisions interpreting its reach to updates on recent prosecutions under it.

Prof. Koehler recently wrote an interesting post about his unsuccessful efforts to interview the head of the FCPA Unit within DOJ.

According to the post, Prof. Koehler has tried to engage a senior DOJ official for a few years now. But he can’t seem to get in the door.

In contrast, DOJ officials have talked to other media sources.

DOJ FCPA officials routinely speak to on-line information sources on topics relevant to the Foreign Corrupt Practices Act and certain of these outlets often put the official’s comments behind a paywall.

This post highlights the DOJ’s long refusal to engage with FCPA Professor and frequent denial of FCPA Professor interview requests. Should DOJ officials engage with FCPA Professor?

So, why aren’t DOJ officials talking to FCPA Professor? It’s worth noting that the blog is free and available to anyone who wants to read it, unlike Law360 and its ilk.

When DOJ announced its new Pilot Program in April 2016, Leslie Caldwell trumpeted the effort as one to bring transparency to the process:

One of my priorities in the Criminal Division has been to ensure that we have a robust and transparent enforcement program targeting violations of the Foreign Corrupt Practices Act (FCPA).  Bribery of foreign officials harms those who play by the rules, siphons money away from communities, and undermines the rule of law.

Now, there’s obviously no obligation for anyone at DOJ to talk to a blogger or a reporter or anyone else, for that matter. But if DOJ wants “transparency” in its enforcement program, then why not answer a few questions from a leading expert on the topic?

DOJ’s continued refusal to engage with Prof. Koehler makes you wonder a few things.  Do DOJ officials want only to talk to reporter who will ask basic questions about enforcement of the FCPA? Do DOJ officials not want to face the questions of an educated, experienced blogger who has, at times, criticized DOJ’s decisions to prosecute under the FCPA and whose posts highlight DOJ’s unsuccessful prosecutions?

I’m sure FCPA Professor will keep up the good fight. If nothing else, he remains hopeful that Daniel Kahn may engage with him.

However, given the DOJ’s frequent reference to engagement and transparency in the FCPA space, I remain hopeful that some day DOJ FCPA officials will conclude it is worth their time to engage with a leading FCPA information source that is a free and publicly available.

Hey, DOJ, give Prof. Koehler a call.

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