2019] CONSPICUOUS PROSECUTION IN THE SHADOWS 893
interns, JP Morgan was forced to pay the SEC $130 million.7 Yet the SEC cited
no authority to support its assertion that giving an internship to an official’s
friend or relative constituted an unlawful payment.8 The First Circuit had
actually just ruled to the contrary.9 Moreover, it is unlikely that JP Morgan
possessed the requisite mens rea.10 And yet almost every corporate defendant
settled or otherwise resolved the action without a fight,11 and the DOJ and the
SEC each made more money from FCPA corporate settlements than they ever
had before.12 Agency officials knew the corporations would settle because
fighting the charges would be costlier than settling.13
This Note argues that the FCPA started with honorable goals, but that it
is not working. It is an especially vague statute. Courts have not and will not
clarify it because FCPA cases virtually never wind up in open court. Given the
lack of judicial oversight, a clear statute with bright-line rules is necessary to
put defendants on notice and prevent abuse by prosecutors. While global
bribery is a serious problem, the FCPA anti-bribery provisions are imperialist.
Rather than helping developing countries hold their leaders accountable for
violating domestic bribery laws, the FCPA holds foreign business leaders
accountable for violating U.S. laws. In the process, the FCPA imposes
American rules and values on foreign countries rather than helping those
countries implement their own anti-bribery laws. Along the way, it ensures
that wrongdoers abroad pay their penalties to U.S. enforcement agencies not
7. Press Release, S.E.C., JPMorgan Chase Paying $264 Million to Settle FCPA Char ges
(Nov. 17, 2016), https://www.sec.gov/news/pressrelease/2016-241.html.
8. Koehler, supra note 1, at 126–27.
9. Id. at 129–30 (citing United States v. Tavares, 844 F.3d 46, 54–55 (1st Cir. 2016)).
10. Id. at 127. Arthur Levitt, a former chairman of the SEC, recently wrote a compelling op-
ed expressing his view of such enforcement actions:
[M]y father was New York state comptroller . . . . [Y]es, I probably got at least one or
two jobs as a result of knowing people, including my first job as a trainee for Life
magazine. But according to financial regulators now looking into the hiring
practices of major U.S. banks and multinationals in China—some of which have
employed members of influential Chinese families—anyone wh o once hired me
might have been violating ethical and legal standards. Securities and Exchange
Commission regulators now suggest that such hiring overseas is a form of untoward
influence, akin to bribing foreign officials to win business. The accusation is
scurrilous and hypocritical. If you walk the halls of any institution in the U.S.
—Congress, federal courthouses, large corporations, the White House, American
embassies and even the offices of the SEC—you are likely to run in to friends and
family members of powerful and wealthy people.
Arthur Levitt, ‘Influence Peddling’ Makes the World Go Round, WALL ST. J. (Dec. 25, 2013, 3:55 PM),
11. Koehler, supra note 1, at 99.
12. Id. at 107.
13. See infra notes 103–05 and accompanying text. The defendants did not settle because
they found the government’s reading of the law defensible. See Jean Eaglesham et al., Wall Street
Pushes Back on Foreign Bribery Probe, WALL ST. J. (Apr. 29, 2015, 7:24 PM), https://www.wsj.com/