Originally published in The FCPA Report on November 28, 2012.
On November 14, 2012, the DOJ and SEC jointly published “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (Guidance), their long-awaited and highly anticipated guidance on the FCPA. The Guidance did not pronounce any new defenses or radically reinterpret any of the FCPA’s provisions, but it does provide useful insights into the government’s enforcement considerations and should serve as a roadmap for companies to reevaluate and revise their FCPA compliance policies.
The most useful takeaway for compliance officers is “Guiding Principles of Enforcement,” in Chapter 5, which discusses the factors the DOJ and SEC consider when deciding whether to open an investigation or bring charges; the emphasis that the government places on self-reporting, cooperation, and remedial efforts; and the ten “hallmarks” of effective compliance programs. Later, in the “Resolutions” chapter, the Guidance provides several anonymized examples of cases where the SEC or DOJ declined prosecution. With the lone exception of the announcement of a declination in the Morgan Stanley case, this is the first time that either agency has publicly discussed actual examples of declinations.
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