The FCPA trade press knows how to turn a molehill into a mountain.  No insult is intended.  The FCPA industry needs to get a grip and focus on what is important.

Take for example the reporting of the recent FCPA conference in Washington, D.C. at which there was some big news and some not so big news which is characterized as “news.”

AAG Breuer’s announcement that the Justice Department intended to update guidance on the FCPA was newsworthy, although DOJ should have offered to issue such guidance months ago.  One thing DOJ watchers know is that DOJ moves slowly.  It is a cumbersome bureaucracy which requires patience and persistence to get things done.  The delay usually is the result of the need to get sign offs and consensus from each interested component/stakeholder in the Department. 

One brief aside – when I worked in the Justice Department, a colleague and I marveled and printed out what we still believe is the longest string of emails ever in DOJ history.  The email strong was so long when we hung it from the ceiling it reached all the way to the floor of the office.  A truly remarkable feat!!

What is also important about AAG Breuer’s announcement is the change in tone in the last two years in which Breuer warned businesses of aggressive enforcement actions and reiterated DOJ’s commitment that FCPA enforcement is “here to stay.”  This year, due to lobbying efforts and Congressional pressure, AAG Breuer was  a little more defensive and offered justifications for DOJ’s enforcement policy.

The FCPA cottage industry reports on statements made by other DOJ officials did not appear to be newsworthy.  FCPA Chief Duross’ announcement that DOJ was interested in systemic violations rather than one-off violations.  Well, that is not surprising,  DOJ is never going to prosecute  “one-off” violations, or even those that may be isolated in nature.     

Equally without import was Fraud Chief McInenary’s “claim” that the number of declinations was much more than businesses and practitioners believed.  It is hard to imagine what the basis for this claim is or even what the claim means.  It was reported like gospel and words from the oracle rather than politically motivated speech intended to try and quiet business concerns. 

 DOJ came to the recent FCPA program with an agenda.  A political one which was to try and quiet critics and businesses in order to reduce political pressure on the Department to reform its enforcement program.  The FCPA trade press was there ready to repeat all of the Department’s political talking points.