FCPA: The Dog Bite Defense and Your FCPA Compliance Program

As most readers of this blog know, I am a recovering trial lawyer. I almost always acted as defense counsel for corporations in my trial lawyer career. In the trial lawyer world, there are four recognized defenses to any claim which are affectionately known as the “Dog Bite Defenses”. They are:

My dog didn’t bite you. Even if my dog did bite you, it’s because you provoked him. Even if my dog did bite you, you really aren’t injured. My dog didn’t bite you because I don’t have a dog.

The fourth version of the Dog Bite defense is certainly an ‘all-in’ move. You had either (1) better be right or (2) have some big kahunas to make that argument to a jury with a straight face.

None of the cases I defended involved allegations of violations of the Foreign Corrupt Practices Act (FCPA) but some did involve corporate fraud. In an article entitled “Business Ethics and Moral Motivation: A Criminological Perspective” Joseph Heath took a look at the prevalence of white-collar crime in the discussions in business ethics. In his abstract he stated that “One of the effects that has been the development of a strong emphasis upon questions of moral motivation within the field. Often in business ethics, there is no real dispute about the content of our moral obligations, the question is rather how to motivate people to respect them. This is a question that has been studied quite extensively by criminologists as well, yet their research has had little impact on the reflections of business ethicists.” In this article, I attempt to show how a criminological perspective can help to illuminate some traditional questions in business ethics. I begin by explaining why criminologists reject three of the most popular folk theories of criminal motivation. I go on to discuss a more satisfactory theory, involving the so-called ‘‘techniques of neutralization,’’ and its implications for business ethics ...

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