Private FCPA Enforcement

摘要

Federal courts have uniformly held that there is no implied private right of action under the FCPA. Most such decisions have relied on a 1990 decision by the U.S. Court of Appeals for the Sixth Circuit that is seriously flawed. Careful examination of the Sixth Circuit's analysis reveals that, contrary to the court's conclusion, a strong argument can be made that a private right of action should be implied. But even if the Sixth Circuit is correct, an even stronger argument can be made that Congress should amend the FCPA to create an express private right of action. Such an amendment would produce a number of significant benefits. These benefits include compensation of the victims of foreign bribery, enhanced deterrence of foreign bribery, alignment of U.S. foreign antibribery 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.