Wal-Mart bribery scandal seen undermining effort to soften U.S. anti-corruption statute

By Guest Contributor
May 2, 2012

By Brett Wolf

ST. LOUIS, May 2 (Thomson Reuters Accelus) – News that Wal-Mart may have tried to cover up bribes paid by its Mexico unit will make it difficult for Congress to weaken an anti-bribery statute loathed by the U.S. business community, at least in the short term, sources say.

“My conclusion is that the Wal-Mart article makes it impossible to change the Foreign Corrupt Practices Act at the moment,” said Peter Henning, a professor at Wayne State University Law School.

The New York Times reported last week that in September 2005, a senior Wal-Mart lawyer received an email from a former executive at the company’s largest foreign unit, Wal-Mart de Mexico, describing how the subsidiary had paid bribes to obtain permits to build stores in the country.

Wal-Mart sent investigators to Mexico City and found a paper trail of hundreds of suspect payments totaling more than $24 million, but the company’s leaders shut down the investigation and neglected to notify U.S. or Mexican law enforcement officials, the Times reported. Wal-Mart has said it began an investigation into its Foreign Corrupt Practices Act (FCPA) compliance last fall. It said it disclosed the probe to the U.S. Department of Justice and the Securities and Exchange Commission and declined to give any more details or to make executives available for comment.

The company also announced it had created a global officer to oversee FCPA compliance.

The Chamber of Commerce, the largest U.S. business lobby, has been vocal in its criticism of the FCPA, which bars U.S. companies from paying bribes overseas to win or maintain contracts. It believes the law, and aggressive enforcement by the Justice Department and securities regulators, is making U.S. businesses less competitive.

In March 2011, the Chamber hired former U.S. Attorney General Michael Mukasey to lobby for amendments to the law. U.S. Senators Chris Coons of Delaware and Amy Klobuchar of Minnesota and Representative Bobby Scott of Virginia have all expressed interest in FCPA amendments, sources say.

The Chamber would like Congress to clarify the statute’s definition of “foreign officials,” ensure that firms are credited for their anti-corruption efforts when a rogue employee or contractor pays a bribe, and make other changes to benefit businesses.

While a lawmaker might have been willing to introduce a bill to enshrine such amendments prior to the Times article, it would be difficult to do so now, especially given that it is a presidential election year, Henning said.

“Up until last week, you could plausibly make the argument of economic development, that FCPA amendments would create jobs,” Henning said.

He added, however, that up until now, the corporate poster boy for corruption was probably Germany’s Siemens AG, which in late 2008 agreed to pay a record-setting $800 million to settle FCPA charges with the Justice Department for allegedly paying bribes around the world.

“The argument against amending the FCPA used to be ‘Do we want another Siemens?’ But who has ever heard of Siemens? Now all of a sudden it’s Wal-Mart. Everybody knows Wal-Mart, so everyone took a look at it. That has really changed the political calculus,” Henning said.

He suggested that any bill introduced now could be portrayed as “the Bribery Encouragement Act of 2012″ and would lack popular support.

“The Democrats will say it is another pro-business measure by the Republicans. They will say ‘You want tax cuts for the wealthy and you want to help businesses bribe abroad,’” he said.

He did note, however, that much of the focus on Wal-Mart’s purported misdeeds will likely be gone before long.

“A year from now, no one will remember it. In a [Mitt] Romney administration, or even in a second [Barack] Obama administration, maybe you could push amendments through,” he said.

Mike Koehler, an assistant professor of business law at Butler University, agreed that the recent news regarding Wal-Mart “could impact FCPA reform.” He added, however, that amendments were unlikely in the short term anyway because the Justice Department in late 2011 promised to release guidance on FCPA enforcement in 2012, and lawmakers wanted to see that guidance before acting.

“Guidance has still not been released and when it is, there is likely to be an absorption period that flows into the election season,” Koehler said.

Richard Cassin, a lawyer who helps clients comply with the FCPA and runs a blog dedicated to the statute, said the Times’ Wal-Mart article will likely “slow down efforts to reform the FCPA.”

“How does Wal-Mart affect the debate? It draws a lot of attention to the FCPA,” he said. “The FCPA supporters say the case demonstrates why we need laws against overseas bribery and why enforcement policy should always encourage companies to make early disclosure of potential compliance problems.”

(This article was produced by the Compliance Complete service of Thomson Reuters Accelus.  Compliance Complete (http://accelus.thomsonreuters.com/solut ions/regulatory-intelligence/compliance- complete/) provides a single source for regulatory news, analysis, rules and developments, with global coverage of more than 230 regulators and exchanges.)

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