Breakdown of FCPA Guidance

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On November 14, 2012, the Criminal Division of the U.S. Department of Justice (DOJ) and the Enforcement Division of the U.S. Securities and Exchange Commission (SEC) released their much-anticipated FCPA guidance, entitled “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (the Guide). Released just over a year after Assistant Attorney General Lanny A. Breuer announced that such guidance would be forthcoming in 2012, the Guide is a useful resource on myriad FCPA topics for both businesses and practitioners. To be clear, the 120-page Guide was not intended to provide an “academic” analysis of the sparse legal precedent, legislative history and competing statutory interpretations of the FCPA. Rather, the Guide is designed to outline the statute, and to offer some measure of transparency into DOJ and SEC enforcement priorities, theories, and approaches to exercising prosecutorial discretion in this area.

Before the Guide, businesses and practitioners attempting to understand DOJ’s and the SEC’s respective approaches to the FCPA were largely forced to “read tea leaves” by studying often opaque settlement agreements between FCPA defendants and DOJ and/or the SEC; attending conferences at which FCPA enforcement authorities were guest speakers; sifting through DOJ advisory opinions; and studying DOJ and SEC press releases. To that end, the Guide is a major development in that, for the first time, DOJ and the SEC have presented their collective views of FCPA issues in one, comprehensive, 120-page resource. While the Guide is non-binding and does not limit the enforcement options or litigating positions of any U.S. government agency, Principal Deputy Chief Jeffrey H. Knox of the Criminal Division’s Fraud Section described the guidance as similar to the U.S. Attorneys’ Manual, and noted that the legal community can be confident that authorities will act consistently with the guidance.i Thus, for the first time, businesses and practitioners have clear statements from the relevant authorities about numerous FCPA-related issues, and no longer have to rely on extrapolation from a variety of typically case-specific sources.

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