A Modicum of Clarity: DOJ and SEC Shed Some Light on the Foreign Corrupt Practices Act


On November 14, 2012, the Department of Justice and the Securities and Exchange Commission issued A Resource Guide to the U.S. Foreign Corrupt Practices Act. Although this resource breaks no new ground, it offers useful guidance to help lawyers and clients alike understand the government’s interpretation of the FCPA.

Background -

Congress enacted the Foreign Corrupt Practices Act (the “FCPA” or “Act”) in 1977, but it remained an infrequently enforced statute until the last decade. Enforcement efforts by the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) have increased dramatically in recent years, leading to fines of hundreds of millions of dollars in some cases. These eye catching penalties have prompted multinationals to adopt compliance programs and extensively investigate allegations of corrupt practices, particularly bribery of officials of foreign governments or public international organizations, either directly by company employees or indirectly through third-party agents.

Despite the surge in FCPA investigations and enforcement, few of these high risk cases actually have been litigated, resulting in a scarcity of legal authority demarcating the reach of this vague, bluntly written statute. In addition, FCPA practitioners and regulated entities have perceived an inconsistency in the manner in which the government approaches possible violations of the Act, leading to uncertainty and heightened investigative and legal costs. In response, commentators and members of the regulated community have called for Congress to amend the law.

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