For those of you who haven't been paying attention lately, WalMart is under investigation for violating the Foreign Corrupt Practices Act.
>Wal-Mart, the giant retailer now under fire over allegations of foreign bribery in Mexico, has participated in an aggressive and high-priced lobbying campaign to amend the long-standing U.S. anti-bribery law that the company might have violated.
>Wal-Mart’s corporate secretary and top ethics officer, Thomas D. Hyde, who stepped down from his job at Wal-Mart in 2010, was among the company executives who received initial reports of the bribes in 2005, the Times reported.
>Between 2003 and 2010, public records show, Hyde sat on the 40-member board of the Institute of Legal Reform, a division of the U.S. Chamber that has led the way in criticizing parts of the law and talking about the need to change it.
They use the word "might" because Walmart hasn't been convicted yet.
>The former executive gave names, dates and bribe amounts. He knew so much, he explained, because for years he had been the lawyer in charge of obtaining construction permits for Wal-Mart de Mexico.
>Wal-Mart dispatched investigators to Mexico City, and within days they unearthed evidence of widespread bribery. They found a paper trail of hundreds of suspect payments totaling more than $24 million. They also found documents showing that Wal-Mart de Mexico’s top executives not only knew about the payments, but had taken steps to conceal them from Wal-Mart’s headquarters in Bentonville, Ark. In a confidential report to his superiors, Wal-Mart’s lead investigator, a former F.B.I. special agent, summed up their initial findings this way: “There is reasonable suspicion to believe that Mexican and USA laws have been violated.”
>The lead investigator recommended that Wal-Mart expand the investigation.
>Instead, an examination by The New York Times found, Wal-Mart’s leaders shut it down.
>Neither American nor Mexican law enforcement officials were notified. None of Wal-Mart de Mexico’s leaders were disciplined. Indeed, its chief executive, Eduardo Castro-Wright, identified by the former executive as the driving force behind years of bribery, was promoted to vice chairman of Wal-Mart in 2008. Until this article, the allegations and Wal-Mart’s investigation had never been publicly disclosed.
>But The Times’s examination uncovered a prolonged struggle at the highest levels of Wal-Mart, a struggle that pitted the company’s much publicized commitment to the highest moral and ethical standards against its relentless pursuit of growth.
>Today, one in five Wal-Mart stores is in Mexico.
It is my understanding that the FCPA is the only federal criminal statute that requires the imprisoning of the CEO for wilful violations.
A quick look at the lobbying efforts by WalMart would make it impossible to prosecute them:
For example, redefining foreign officials would open the door to all the fixers that operate in Mexico. From the NY Times article:
>Gestores (pronounced hes-TORE-ehs) are a fixture in Mexico’s byzantine bureaucracies, and some are entirely legitimate. Ordinary citizens routinely pay gestores to stand in line for them at the driver’s license office. Companies hire them as quasi-lobbyists to get things done as painlessly as possible.
>But often gestores play starring roles in Mexico’s endless loop of public corruption scandals. They operate in the shadows, dangling payoffs to officials of every rank. It was this type of gestor that Wal-Mart de Mexico deployed, Mr. Cicero said.
>Mr. Cicero told Mr. Torres-Landa it was his job to recruit the gestores. He worked closely with them, sharing strategies on whom to bribe. He also approved Wal-Mart de Mexico’s payments to the gestores. Each payment covered the bribe and the gestor’s fee, typically 6 percent of the bribe.
>It was all carefully monitored through a system of secret codes known only to a handful of Wal-Mart de Mexico executives.
As it is now, gestores would count as "instrumentality" which would lead to a conviction. Redefining foreign official (page 24+ of the pdf) would eliminate this avenue of prosecution, essentially requiring videotapes of suitcases of cash as in Abscam.