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Unpublished Paper
Private FCPA Enforcement
ExpressO (2011)
  • Gideon Mark, University of Maryland
Abstract

This Article argues for recognition of a private right of action in the Foreign Corrupt Practices Act (FCPA), either judicially (on an implied basis) or legislatively (by amendment of the FCPA). The FCPA, enacted in 1977, prohibits companies and individuals from paying or promising to pay money or anything of value to foreign officials with the intent of obtaining or retaining business. The FCPA also has accounting provisions which require issuers to maintain books and records that accurately and fairly reflect their transactions and to devise and maintain an adequate system of internal accounting controls aimed at preventing and detecting FCPA violations. There is no express private right of action for violations of either the anti-bribery or the accounting provisions. In 1990 the Sixth Circuit held that there is no implied private right of action and every federal court to consider the issue since then has held in accord with that decision. This Article argues that such decisions are incorrect and Congress should amend the FCPA to create a broad express private right if courts continue to hold in accord with the Sixth Circuit and refuse to recognize an implied right. A number of significant advantages will flow from the proposed amendment, including compensation of the victims of foreign bribery, enhanced deterrence of foreign bribery, alignment of U.S. foreign anti-bribery policy with international conventions, and long-denied judicial review of the FCPA’s key provisions. A private right of action under the FCPA should be recognized for all of these reasons.

Disciplines
Publication Date
September 4, 2011
Citation Information
Gideon Mark. "Private FCPA Enforcement" ExpressO (2011)
Available at: http://works.bepress.com/gideon_mark/3/