Author Archives: Matthew Stephenson

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About Matthew Stephenson

Professor of Law, Harvard Law School

Is the Walmart Case Not Such a Big Deal After All?

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Last week I published a post with some conjectures as to why the DOJ’s investigation into alleged Foreign Corrupt Practices Act violations by Walmart – triggered by New York Times reports, published in 2012, of widespread bribes paid by Walmart’s Mexican subsidiary, Wal-Mex – might be taking a long time to resolve. I noted that there was as yet no evidence of an especially lengthy investigation, compared to the norm in big FCPA cases, but I nevertheless speculated that perhaps the case might take a long time because the seriousness of the misconduct, coupled with Walmart’s failure to disclose (or even to conduct a reasonable internal investigation), meant that the DOJ was going to insist on particularly severe penalties (which Walmart’s lawyers might be resisting). But I may have been completely wrong about that: According to a report in this past Sunday’s Wall Street Journal, the Walmart investigation is likely to be wrapped up soon, and the fine may be much smaller than expected, in part because (at least according to the sources for WSJ report) the bribery violations in Mexico were not as extensive as many (myself included) had thought.

It’s important to emphasize that the WSJ report has not been confirmed by the Justice Department, Walmart, or any other source. It may well turn out to be inaccurate. But let’s suppose for the moment that it’s (mostly) right. Suppose we see a Walmart settlement within the next few months in which the extent of (admitted) violations, and/or the severity of the penalties, are much lower than expected. What to make of this? A few thoughts: Continue reading →

Guest Post: Civil Society, Big Ideas, and the 2016 London Anticorruption Summit

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Ben Cowdock of Transparency International UK (TI-UK) contributes the following guest post:

Earlier this year, UK Prime Minister David Cameron gave a speech in Singapore in which he vowed to take a stand against corruption at home and abroad, and announced that London would host an International Anticorruption Summit in 2016. We at TI-UK are optimistic that this summit will provide an expanded opportunity for civil society to contribute, and indeed we are hopeful that we may be entering a period of unprecedented involvement of the wider anticorruption community in the formulation of national and global policy. This would signify an exciting new direction for policymakers—one which the anticorruption community has long advocated. A more open and inclusive process is beneficial for society as a whole; policy is increasingly built on consensus and shared learning, resulting in choosing the right path to tackling corruption.

More concretely, in response to the Prime Minister’s announcement and in preparation for this global summit, Transparency International UK (TI-UK) has been assembling a database of the current “big ideas” on anticorruption policy from the academic, activist, business and policy communities. The database, currently contains over 100 “game-changer” policy proposals (including a number of suggestions put forward and debated on this very blog (such as truth commissions and the potential benefits of expanding UNCAC article 35). To enhance academic, public, and policy awareness of the range of current policy proposals, the database will be published in the near future with full attribution to authors and researchers. We hope this will lead to further debate on which ideas have the potential to significantly improve anti-corruption efforts and deter corruption. We also hope that the summit will provide an opportunity to showcase the growth of “anticorruption hacking”, a collective action phenomenon in which civil society generates pioneering technological approaches to fighting corruption.

The London summit represents a chance for new ideas to come to the fore and be at the heart of UK and global effort against corruption. Civil society has already made a huge contribution in the overwhelming response to TI-UK’s call for big idea policies, which we hope will be influential in shaping the agenda of the summit and demonstrating an international commitment to making a change for the better. If you have any big “game-changing” ideas that you believe would further UK or international anti-corruption efforts, we encourage you to leave an overview in the comment!

(Why) Is the Walmart Case Taking So Long?

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So this might not be the most important question in the world, but I’ve been wondering why the U.S. Government’s investigation into Walmart’s alleged violations of the Foreign Corrupt Practices Act (or, more accurately, FCPA violations committed by Wal-Mart’s Mexican subsidiary, Walmex) has yet to produce a final settlement.

A quick and somewhat simplified recap (for those among our readers who don’t obsessively follow every FCPA case in the pipeline): In April 2012, two New York Times reporters broke a blockbuster story about how Wal-Mex had been systematically paying bribes to scores of Mexican officials to get permits for new stores (often circumventing local environmental protection and historical preservation regulations in the process), and—perhaps even more damningly—about how Walmart’s senior leadership, upon learning of the bribery allegations from an internal whistleblower and preliminary internal investigation, had decided to cover up the problem and reject its own compliance department’s calls for a thorough investigation. (Walmart tried to get out in front of the story by including a disclosure of possible FCPA problems in its December 2011 FCPA filing, though that disclosure downplayed the seriousness of the issue.) The original New York Times story, along with a follow-up story published in April 2012, netted the two reporters a Pulitzer Prize. Those reports, along with Walmart’s December 2011 disclosure, prompted the Department of Justice Securities & Exchange Commission to begin investigating Walmart for FCPA violations.

That was back in April 2012. It’s now three and a half years later, and there’s still no resolution of the case; the investigation is still ongoing—something that has prompted grumbling in some quarters about both the length and cost of the investigation (see here and here). Why is this taking so long?

This is a question I’ve heard several people raise at various conferences and meetings. I don’t have any good answers, but I thought I’d throw out a few hypotheses: Continue reading →

Guest Post: Promoting Ambient Accountability with Architecture and Design

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GAB is delighted to welcome back Dieter Zinnbauer, Programme Manager at Transparency International, who contributes the following guest post:

Corrupt transactions do not merely “take place” – they take place in a place, a specific place at a specific time: at customs authorities and land registrars, at hospital wards, police road-stops, school headmaster offices, or the offices of social benefits agencies. The fact that most form of corruption occur in physical locations may seem both obvious and unimportant, but in fact there may be some promising ways to modify the physical settings for government-citizen interactions that would make various kinds of corruption less likely to occur (or easier to detect and remedy). This possibility builds on the observation that many corrupt transactions are fragile forms of social exchange, often involving power asymmetries, established social roles, norms, and expectations. These social dynamics are critical to enabling the parties to engage in an illegal transaction that could get both of them into a lot of trouble. These complex social dynamics and expectations are affected by the physical environment; modifications to that environment can therefore disrupt or alter the social dynamics of a specific situation—creating feelings of empowerment for potential targets of extortion and feelings of uncertainty and anxiety for those who would propose corrupt exchanges.

We should therefore think about ways to use architecture and design to empower citizens to become more aware of their rights and entitlements, to better understand and assess the services they receive, and to register complaints and seek remedies more effectively. I call this concept “ambient accountability.” I have developed this idea more fully in two recent papers (here and here), but here are some concrete examples of how this sort of intervention might work in other contexts: Continue reading →

Impunity and Immunity: When (if Ever) Should We Sacrifice Accountability for Past Corruption Crimes?

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I’ve been meaning to write a bit more about last month’s International Anti-Corruption Conference (other than my snarky reflections about anticorruption conferences generally). The conference theme was “Ending Impunity,” and indeed most of the panels and speeches emphasized, in one way or another, the importance of ending the culture of impunity and holding corrupt actors (criminally) accountable for their actions. I couldn’t agree more about the importance of ending the culture of impunity. Indeed, I suspect few people would dispute that objective; the controversies, such as they are, involve questions of means. And as a general matter, I’m also all for accountability. Who wouldn’t be? But here my commitment is more qualified, and I think the issue is a bit more complicated then some of the rhetoric sometimes implies. In fact, in the context of corruption offenses, there may be sometimes be good, or at least plausible, reasons for sacrificing accountability in order to advance some other interest.

I recognize that statement may be controversial, perhaps even heretical. Is it really ever OK to insist on less than full accountability for past corruption crimes? If so, when? The first panel I attended at the IACC, entitled “Breaking the Cycle of Impunity: Why Truth Telling and Accountability for Past Economic Crimes Matters,” brought these difficult questions to the fore. The four excellent panelists (Hennie Van Vuunen, Osama Diab, Gladwell Otieno and Transparency International Chair Jose Ugaz) all came out (unsurprisingly) against impunity and in favor of accountability. But as the subsequent discussion revealed, the impulse to hold the corrupt (fully) accountable sometimes conflicts with other legitimate interests. Although everyone agrees that those who commit corruption offenses should never have impunity, there are reasonable arguments for sometimes granting them (full or partial) immunity. Consider a few possible scenarios in which one might be tempted to exchange (full) accountability for something else: Continue reading →

Guest Post: Why We Should Be Excited About SDG 16

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GAB is delighted to welcome back Daniel Dudis, Senior Policy Director at Transparency International-USA, who contributes the following guest post:

On September 25th, the United Nations adopted the Sustainable Development Goals (SDGs). The SDGs identify development priorities and set measurable targets for progress that are to be met by 2030. They also replace the Millennium Development Goals (MDGs), adopted in 2000 and set to expire at the end of this year. The MDGs were aimed primarily at improving living conditions in developing countries, and focused on reducing extreme poverty and improving health, education, sanitation, and nutrition. Unfortunately, progress towards achieving the MDGs has been uneven at best. Notably absent from the MDGs were any commitments on improving governance or reducing corruption. Given that in most countries, government is the primary service provider for healthcare, education, and sanitation, and that government provides nutrition assistance and sets economic policy, the absence of any commitments to improve governance or reduce corruption was a notable blind spot. Honest, accountable, efficient government is the foundation upon which economic development and improved service delivery are built.

Happily, goal 16 of the SDGs fills this lacuna. Goal 16, which seeks to promote just, peaceful, and inclusive societies, includes (among other governance-related targets) significant reductions in illicit financial flows, progress on the recovery and return of stolen assets, and substantial reductions in corruption and bribery.

It is easy to be skeptical about the utility of ambitious international agreements such as the SDGs. Indeed, Matthew’s post last week, which criticized the Goal 16’s anticorruption targets on the grounds that they are ill-suited to quantitative measurement of progress, and Rick’s post yesterday, exemplify that view. Such skepticism, however, is misplaced. The inclusion of these targets in Goal 16 of the SDGs is an important step forward as it represents a clear endorsement by the community of nations that good governance and the fight against corruption are integral parts of the global development agenda. Continue reading →

Should FCPA Enforcers Focus on Bribe-Paying Employees or Their Corporate Employers?

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These days most (though not all) resolutions in Foreign Corrupt Practices Act cases involve corporate defendants paying fines or other penalties to the government. Usually (again, not always) the government does not bother prosecuting the employees who paid the bribes. (While the government has recently made individual liability in corporate criminal cases more of a point of emphasis — as exemplified by the DOJ’s Yates Memo, which Danielle discussed in yesterday’s post — the targets in those cases are typically senior executives who orchestrated bribe-paying schemes, not the lower-level executives or employees who actually paid the bribes.) The government also uses various legal tools to encourage lower-level employees blow the whistle on their employers.

Do we have this backwards? Right now, the government focuses its enforcement efforts on the corporate employers, rather than the lower-level employees who pay the bribes. Should the government instead emphasize enforcement actions against the employees? Right now, the government tries to give employees incentives to uncover and disclose evidence of FCPA violations committed by their employers. Should the government instead focus on encouraging the employers to uncover and disclose FCPA violations committed by their employees?

This past summer, I was fortunate enough to attend the Third Annual Conference on Evidence-Based Anti-Corruption Policies in Bangkok, and the keynote speaker at that event, New York University Law Professor Jennifer Arlen, made a case along those lines. (Professor Arlen’s address was actually a much more wide-ranging discussion of corporate criminal liability; I’ve extracted, and possibly oversimplified or distorted, one thread of her argument. But it’s an interesting enough argument that I think it’s worth engaging, and I’ll focus on the simple version, even though her position is more nuanced.) The argument goes something like this: The DOJ should adopt a policy that any corporation that discovers FCPA violations by its employees, and then promptly (a) discloses the violation to the government, (b) provides the government with information, and (c) assists the government in prosecuting the employee, should be exempt from corporate criminal liability for the violation; the DOJ should instead vigorously prosecute the individual employees in this situation (using the evidence that the corporate employer has itself provided). If the corporation fails to promptly disclose such a violation, however, and the government subsequently finds out about it, the corporation should be held criminally liable for the FCPA violation, and penalized accordingly.

I think this proposal is interesting enough to take seriously, though in the end I remain unconvinced that this shift in emphasis would be a good idea. Let me first lay out the argument in favor of this change, and then explain why I ultimately disagree. Continue reading →

Guest Post: Pro-Transparency Organizations Fail To Practice What They Preach

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Till Bruckner, freelance journalist and Advocacy Manager for Transparify (an initiative that rates the financial transparency of think tanks and advocacy groups), contributes the following guest post in a private capacity:

“Transparency” is the watchword of the international anticorruption movement, a fact perhaps best illustrated by Transparency International’s choice of name. And partly due to the efforts of TI and many other groups, the world has changed for the better: transparency has become the new norm. Yet many of the anticorruption groups themselves need to wake up to this reality, and become more transparent themselves. Indeed, those of us in the anticorruption community would do a lot better if we started to walk our transparency talk.

This fact was driven home to me in a recent exchange I had with Professor Peter Eigen, the living legend who helped found Transparency International, about his newest venture, the Fisheries Transparency Initiative (FiTI). FiTI aims to curb corruption in international fisheries, and if it works as planned, it could have a positive impact on many issues, including overfishing, food security, and public revenue in developing countries. Somewhat unconventionally, FiTI is financed by the government of Mauritania, whose controversial president, Mohamed Ould Abdel Aziz, first announced the initiative. (see my recent article in Foreign Policy for more background.) I asked Professor Eigen about Mauritania’s financial support for the FiTI; he explained that Mauritania was only sponsoring the initial conceptual phase of FiTI, and he persuasively argued that its government would have no undue influence, let alone control, over outcomes. I then asked Professor Eigen how much Mauritania was paying his organization (the Humboldt-Viadrina Governance Platform) in connection with its work on the FiTI project, but he told me he didn’t want to disclose the figure. He explained:

“This is a normal consulting arrangement of our not-for-profit organization with the [Mauritanian] government. We do not feel it would be proper for us to disclose details of contracts. If media or taxpayers want to find out how [the] Government spends its budget, they can ask the Government. This is for FiTI an unimportant side issue.”

Professor Eigen added two more points. First, his organization would at some later point account for the money on its website. Second, he himself would be working “pro bono.”

Summary: There’s no influence peddling; the use of taxpayer funds is a domestic issue; all money will be accounted for; and nobody is lining their pockets. So, everything is okay, right?

No, it’s not okay at all. Here’s why: Continue reading →

Am I the Only One Who’s Not So Excited About SDG 16?

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This Friday, over 190 world leaders are scheduled to gather at the UN headquarters in New York City for the UN Sustainable Development Summit to endorse a new set of “Sustainable Development Goals” (SDGs) to be achieved over the next 15 years. The SDGs are a follow-up to the Millennium Development Goals (MDGs), but the SDGs are much more expansive and cover a wider range of topics. Most relevant to the anticorruption community is Goal 16 (“Promote Peaceful and Inclusive Societies for Sustainable Development, Provide Access to Justice for All and Build Effective, Accountable and Inclusive Institutions at all Levels”), and in particular SDG “Target” 16.5 (“substantially reduce corruption and bribery in all their forms”).

There seems to be a lot of excitement among anticorruption activists and reformers about Goal 16 and Target 16.5 (see here, here, and here)—but to be honest, I’m not sure why. Indeed, I tend to think that the formal endorsement of anticorruption as part of the SDGs will do little good, and the inclusion of Target 16.5 might, if anything, be counterproductive. Continue reading →

Anticorruption Bibliography–September 2015 Update

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An updated version of my anticorruption bibliography (now with over 4,000 sources!) is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.