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105 that firms that pay more bribes are also likely to spend more, not less, management time with bureaucrats negotiating regulations, and face higher, not lower, cost of capital.”). 8 For example, in a number of recent enforcement actions, the same employees who were directing or controlling the bribe payments were also enriching themselves at the expense of the company. See, e.¢., Complaint, SEC vy. Peterson, No. 12-cv-2033 (E.D.NY. 2012), ECF No. 1, available at http ://www.sec.gov/litigation/complaints/20 12/ comp-pr2012-78.pdf; Criminal Information, United States v. Peterson, No. 12-cr-224 (E.D.N.Y. 2012), ECF No. 7 [hereinafter United States v. Peterson], available at http: //www.justice.gov/' criminal/fraud/ fepa/ cases/ petersong/ petersong-information.pdf; Plea Agreement, United States v. Stanley, No. 08-cr-597 (S.D. Tex. 2008), ECF No. 9 [hereinafter United States v. Stanley] , available at http ://www.justice.gov/ criminal/fraud/ fcpa/ cases/, stanleya/ 09-03-08stanley- plea-agree.pdf; Plea Agreement, United States v. Sapsizian, No. 06-cr-20797 (S.D. Fla. 2007), ECF No. 42 [hereinafter United States v. Sapsizian|, available at http: //wwwsjustice. gov/ criminal/fraud/ fcpa/ cases/sapsizianc/' 06-06-07sapsizian- plea.pdf. ? See, 6.8, Complaint, SEC y. Tyco Int'l Ltd., 06-cv-2942 (S.D.N-Y. 2006), ECF No. 1 [hereinafter SEC v. Tyco Int'l), available at http://www.sec. gov/litigation/complaints/2006/comp 1 9657.pdf; Complaint, SEC vy. Willbros Group, Inc. No. 08-cv- 1494 (S.D. Tex. 2008), ECF No. 1 [hereinafter SEC v. Willbros|, available at http ://www.sec.gov/ litigation/ complaints/2008/comp20571 pdf. 10 See Plea Agreement, United States v. Bridgestone Corp., No. 11-cr- 651 (S.D. Tex. 2011), ECF No. 21, available at http://www.justice.gov/ criminal/fraud/fcpa/cases/bridgestone/ 10-05-1 Ibridgestone-plea.pdf. 1 See S. Rep. No. 95-114, at 6; H.R. Rep, 95-640, at 4; see also A. Carl Kotchian, The Payoff: Lockheed’ 70-Day Mission to Tokyo, SATURDAY Rev., Jul. 9, 1977, at 7. US, SEC. AND EXCHANGE COMM., REPORT OF THE SECURITIES AND EXCHANGE COMMISSION ON QUESTIONABLE AND ILLEGAL CORPORATE PAYMENTS AND PRACTICES 2-3 (1976). 3 See H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114, at 3-4. “FLR. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114, at 4. The Senate Report observed, for instance, that “[m]anagements which resort to corporate bribery and the falsification of records to enhance their business reveal a lack of confidence about themselves,” while citing the Secretary of the Treasury's testimony that “| p|aying bribes—apart from being morally repugnant and illegal in most countries—is simply not necessary for the successful conduct of business here or overseas.” Jd. 'S See S. Rep. No. 100-85, at 46 (1987) (recounting FCPA’s historical background and explaining that “a strong antibribery statute could help US. corporations resist corrupt demands... .”) [hereinafter S. Rep. No. 100-85]. 16S. Rep. No. 95-114, at 7. 17 Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100- 418, § 5003, 102 Stat. 1107, 1415-25 (1988); see also H.R. Rep. No. 100-576, at 916-24 (1988) (discussing FCPA amendments, including changes to standard of. liability for acts of third parties) [hereinafter H.R. Rep. No. 100-576]. '8 See Omnibus Trade and Competitiveness Act of 1988, § 5003(d). The amended statute included the following directive: Tt is the sense of the Congress that the President should pursue the negotiation of an international agreement, among the members of the Organization of Economic Cooperation and Development, to govern persons from those countries concerning acts prohibited with respect to issuers and domestic concerns by the amendments made by this section. Such international agreement should include a process by which problems and conflicts associated with such acts could be resolved. Id.; see also S. Rev. No. 105-277, at 2 (1998) (describing efforts by Executive Branch to encourage U.S. trading partners to enact legislation similar to FCPA following 1988 amendments) [hereinafter S. Rep. No. 105-277]. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions art. 1.1, Dec. 18, 1997, 37 LL.M. 1 [hereinafter Anti-Bribery Convention]. The Anti-Bribery Convention requires member countries to make it a criminal offense “for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, toa foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.” The Convention and its commentaries also call on all parties (a) to ensure that aiding and abetting and authorization of an act of bribery are criminal offenses, (b) to assert territorial jurisdiction “broadly so that an extensive physical connection to the bribery act is not required,” and (c) to assert nationality jurisdiction consistent with the general principles and conditions of each party’s legal system. Jd. at art. 1.2, cmts. 25, 26. 20 See International Anti-Bribery and Fair Competition Act of 1998, Pub. L. 105-366, 112 Stat. 3302 (1998); see also S. Rep. No. 105-277, at 2-3 (describing amendments to “the FCPA to conform it to the requirements of and to implement the OECD Convention’). 21 There is no private right of action under the FCPA. See, Cs Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028-29 (6th Cir. 1990); McLean v. Int'l Harvester Co., 817 F2d 1214, 1219 (Sth Cir. 1987). “US. DEPT. OF JUSTICE, US. ATTORNEYS’ MANUAL § 9-47.110 (2008) [hereinafter USAM ], available at http://wwwjustice.gov/usao/ eousa/: foia_reading_room/ usam/. 23Go to http: //export.gov/ worldwide_us/ index.asp for more information. 4 Additional information about publicly available market research and due diligence assistance is available online. See In] Trade Admin., Market Research and Due Diligence, available at http ://export.gov/ salesandmarketing/ eg_main_01 8204.as Pp. The International Company Profile reports include a listing of the potential partner’s key officers and senior management; banking relationships and other financial information about the company; and market information, including sales and profit figures and potential liabilities. They are not, however, intended to substitute for a company’s own due diligence, and the Commercial Service does not offer ICP in countries where Dun & Bradstreet or other private sector vendors are already performing this service. See In] Trade Admin., International Company Profile, available at http ://export.gov/, salesandmarketing/ eg_main_018198.asp. * The Commercial Services’ domestic and foreign offices can also be found at http://export.gov/usofhices/index.asp and http://export.gov/ worldwide_us/index.as Pp. 26 This form can be located at hetp:/ /tec.export.gov/Report_a_Barrier/ index.asp. * See IN’L TRADE ADMIN., ‘DOING BusINEss IN” GUIDES, available at http ://export.gov/about/eg_main_0 16806.asp. 8 The Business ErHics MANUAL is available at http ff www.ita.doc.gov/ goodgovernance/| business_ethics/ manual.asp. 29 Information about the Advocacy Center can be found at hetp:/ /export. gov/ advocacy. 40 Reports on US. compliance with these treaties can be found at http:// www.justice.gov/ criminal/fraud/ fcpa/ intlagree/ . 3! See Statement on Signing the International Anti-Bribery and Fair Competition Act of 1998, 34 WEEKLY Comp. Pres. Doc. 2290, 2291 (Nov. 10, 1998) “U.S. companies have had to compete on an uneven playing field .... The OECD Convention. .. is designed to change all that. Under the Convention, our major competitors will be obligated to criminalize the bribery of foreign public officials in international business transactions.’). » Colombia is also a member of the Working Group and is expected to accede to the Anti-Bribery Convention. 3 OECD, Country Monitoring of the OECD Anti-Bribery Convention, available at http ://www.oecd.org/document/ 12/0,3746, en_2649_34859_35692940_1_1 1 _1,00.html. 34 OECD, Phase 3 Country Monitoring of the OECD Anti-Bribery Convention, available at http ://www.oecd.org/document/3 1/0,3746, en_2649_34859_44684959_1_1 1 _1,00.html. ® OECD, Country Reports on the Implementation of the OECD Anti- Bribery Convention, available at http ://www.oecd.org/document/24/0,3 746,en_2649_34859_1933144_1_1 1 1,00.html. 36 The OECD Phase 1, 2, and 3 reports on the United States, as well as the US. responses to questionnaires, are available at hetp:/ /www.justice. gov/ criminal/fraud/ fepa/ intlagree. 7 See OECD Working Group on Bribery, United States: Phase 3, Report on the Application of the Convention on Combating Bribery of Foreign HOUSE_OVERSIGHT_022607