Long before the agencies have closed this enforcement action, the market doled out its own unique kind of punishment yesterday. Wal-Mart's stock value declined by almost 5%, reducing the company's market capitalization by no less than $10 billion. We, the public, are sensing potentially vast liability here.
But in the flurry of reporting now taking place, two misperceptions may be gaining traction; let's correct them right now.
The first concerns the significance of the bribes' dollar amount, reported to be in the vicinity of $24 million. That's a good chunk of change, and may be some kind of loose gauge of the problem's magnitude. But we must remember: when estimating the company's ultimate financial liability for these potential violations, the dollar value of the bribes is irrelevant. It might just as soon be 24 cents. Under the FCPA, what matters is not the amount of the bribe, but the amount of profits made possible by the bribe. Specifically, the company's liability could equal three times the amount of profits that resulted from these bribes. Given the size of Wal-Mart's operations in Mexico and the alleged prevalence of these bribes, the numbers boggle the mind.
However, the newspapers are using the word "bribe" far too loosely. You'll notice that a great many of the alleged "bribes" were, according to the reporters, made to speed up the issuing of permits. But make no mistake, folks: that's probably not illegal under the FCPA. It may be unethical, and a violation of local law, but it probably falls under the FCPA's facilitating payment exception. So strictly speaking, many of these reported payments may not be bribes at all. We just don't know yet.
The majority of the reporting on this issue fails to recognize these two distinctions. This is not the first time I have wished that all reporting on business law was proofed by a lawyer. But hey, it's still early. We're just getting started. As we are all collectively searching for the answers, let's first make sure we're asking the right questions.
Andy Spalding is a contributing editor of the FCPA Blog. He teaches international business law at the Chicago-Kent College of Law. Effective June 1, he’ll be an Assistant Professor at the University of Richmond School of Law.