The 1977 law makes it a crime for U.S. companies to profit from bribes to foreign officials. And there’s growing curiosity about the Foreign Corrupt Practices Act (FCPA) in media circles as recent revelations involving News Corp suggest that prosecutors could make a strong case against the company. The Justice Department’s investigation goes back at least to July, when Attorney General Eric Holder confirmed his agency’s involvement. The Wall Street Journal reported this week that the FBI is exploring whether a former News Corp subsidiary, News Outdoor Russia, engaged in bribery. But the general feeling is that prosecutors would find it much easier to piggyback on the work of UK’s Scotland Yard, which recently arrested several journalists at Rupert Murdoch‘s The Sun alleging that they paid police and other officials for news tips. Last month Sue Akers, the deputy commissioner overseeing investigations into alleged illegal practices by journalists, told a UK government inquiry into media ethics that there “appears to have been a culture at The Sun of illegal payments” to police, as well as members of the military, the government and other public organizations. Even though that wasn’t the kind of crime the Foreign Corrupt Practices Act (FCPA) was designed to attack, “the language of the Act clearly covers this,” says Solomon Wisenberg, who co-chairs the white collar crime group at Barnes & Thornburg.
Federal officials have two avenues to pursue a FCPA case: Obviously, they can nail companies for making bribes. The law focuses on payments that encourage officials to break the law; it’s OK to cough up so-called “grease payments” that goose them to move quickly on chores that they’re already supposed to handle. In addition, the SEC or Justice Department can go after publicly traded U.S. companies that fail to monitor overseas expenditures closely and account for them accurately. There’s a five-year statute of limitations for FCPA cases, but if one violation took place after mid-2007 then prosecutors could bring in previous transgressions and assert that they’re part of an ongoing scheme.
Most of the time, executives settle FCPA cases out of court. Siemens AG paid the biggest fine, $800M, in 2008 when the Justice Department and SEC alleged that it spent $1.4B on 4,200 questionable payments. But companies that challenge prosecutors often prevail. For example, last month the Justice Department had to drop the biggest FCPA case it ever made: Juries failed to convict 22 defendants nabbed in a sting operation, allegedly for offering bribes to sell military gear to FBI agents secretly posing as officials from the African nation of Gabon.
That’s why some experts say Murdoch probably would suffer little more than embarrassment in an FCPA case. News Corp has lots of cash if it wants to settle. And if he went to court, he could raise several arguments to avoid conviction. The government would have to show that the company was responsible for the bribes, that they weren’t made by a few rogue employees who broke its rules. Prosecutors would also have to prove that the people paying the bribes understood that they were breaking the law. And Murdoch could appeal to the court of public opinion by launching a PR campaign accusing officials of overreaching by attacking News Corp for relatively minor crimes entirely based in the UK. The Journal set the stage for such an effort last July when it said in an editorial that the FCPA “has historically been enforced against companies attempting to obtain or retain government business” — and extending it to Murdoch’s tabloids “could turn payments made as part of traditional news-gathering into criminal acts.”
Still, a crime’s a crime. And if U.S. prosecutors sense that they can prevail then “it’s quite possible” they’ll go after Murdoch, Wisenberg says. “They’ll do anything to avoid going after the major banks responsible for the mortgage meltdown.”