Suspicions that News Corp misdeeds may have extended across the Atlantic heated up this week. A growing chorus of politicians called for investigations, even urging the FBI to look into whether Murdoch’s papers hacked the phones of 9/11 victims. News Corp may have already broken a U.S. law, however, though in a less sensational way. That law is the Foreign and Corrupt Practices Act, and it prohibits companies that are publicly traded in the United States from bribing foreign officials. Pulitzer Prize winning ProPublica reporter Jake Bernstein explains.
As the News of the World scandals sends ripples across British society, from journalism to law enforcement to politics, will it wash onto American shores? This week we heard reports that the FBI is looking into allegations that the phones of 9/11 victims were hacked by Murdoch's papers.
And U.S. politicians are getting involved. West Virginia Senator Jay Rockefeller and New York Congressman Peter King are calling for investigations of Murdoch's News Corp.
But that's not the only way the scandal could become an American story. Propublica business and financial reporter Jake Bernstein says News Corp. may have already violated a U.S. law.
It's possible that News Corp. ran afoul of a 1970s era law called the Foreign Corrupt Practices Act. This was something that came out of the Watergate era, and it's to stop companies from participating in bribery overseas. These are U.S. traded companies.
To keep American, let's say, defense contractors from bribing ministers of defense to buy its tanks or fighter planes. In the case of News of the World, the allegation is that reporters and private detectives were bribing police for information. Does that law really apply here?
The Department of Justice and the SEC have defined a public official fairly broadly, so it could very well apply here.
Who has been prosecuted under this law?
This has become a very popular prosecution for the Department of Justice and the SEC recently. Just in 2005 they had only done 12 such cases. Last year they did 54. The SEC had about 530 million in corporate settlements last year.
So let's just say the United States targets News Corp. for corrupt foreign practices. There’s – there’s two ways that could happen, right? The Justice Department, you mentioned. And you also mentioned the SEC. What – what, what's the difference?
The Justice Department would be criminal. And so that's a sort of higher bar of proof. You need to show intent. I would guess that they’d probably have to show that this was going on at higher levels, that people knew about it.
The SEC, it’s civil, so it's not quite as rigorous in what you need to prove. It's interesting because the SEC can go after a company, even if they don't charge them on the bribery stuff, they can charge them on what's called the Books and Records Provision. If you pay off the policemen and you don't write it down in your company ledger as “Bribe two policemen” –
- then this can be a problem because you haven’t accurately kept your – your books and records.
Okay, let's just say News Corp. is prosecuted criminally and undergoes a civil litigation from the SEC and is found to have bribed foreign officials, what happens next?
The penalties can be quite severe. On the SEC's side, they can do a disgorgement, which means basically they have to give back all of their — the gains that they got from this kind of practice, which in this case would be very difficult to calculate [LAUGHS] because how do you decide what the benefit was from a scoop.
On the criminal side, it's twice the amount of your ill-gotten gains and also fines up to 25 million per violation.
Rupert Murdoch can shake a ten-million-dollar fine out of the sofa cushions. Financially, what is the risk here? Is the corpus of News Corp. in any kind of jeopardy?
No, I don't think so. I mean, there's – there’s a reputational risk. I mean, this certainly won't help the company to try to shake the scandal off.
But then there's another aspect of this. Frequently the SEC and the Department of Justice ask, as part of these settlements, that a monitor be put over the company to make sure that they don't do this kind of thing in the future.
They also ask for a company-wide review so that the, the Justice Department or the SEC is satisfied that this kind of behavior is not happening in the other subsidiaries of the company. Those things can take years.
All right, Jake. Thank you so much.
Thank you, Bob.
Jake Bernstein is a business and financial reporter at ProPublica.
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