DOJ and SEC Release Long-Awaited FCPA Guidance

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On November 14, 2012, the Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) jointly released A Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”). The Guide is intended to provide guidance to “enterprises of all sizes – from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world.” It compiles information from prior enforcement actions and matters the DOJ and SEC have declined to pursue, as well as hypothetical scenarios, to provide insight into the DOJ’s and SEC’s priorities in this critical white collar area. Moreover, at 120 pages, the Guide is vastly more detailed than the DOJ’s prior six-page “Lay Person’s Guide to the FCPA.”

As many of our clients know, the FCPA prohibits corrupt payments or offers topay money or anything of value to foreign government officials or third parties acting on their behalf, when such payments or offers to pay are made to assist in obtaining new business or retaining existing business. The FCPA also contains an accounting and internal controls provision that, in essence, requires U.S. public companies and foreign companies listed on U.S. stock exchanges to maintain accurate books and records and to have sound internal controls.

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