In recent years, corporations in the United States and around the world have seen record levels of enforcement of the Foreign Corrupt Practices Act ("FCPA"), resulting in billions of dollars of civil judgments and numerous criminal convictions against both corporations and individuals. Despite the fact that the statute was passed in 1977, the federal government has failed to provide comprehensive guidance on how it interprets the law. Not surprisingly, lawmakers, corporations, and practitioners alike have grown concerned and frustrated with the environment of uncertainty regarding how to comply with the FCPA given the limited amount of case law and enforcement actions available to interpret the law.
On November 14, 2012, the Department of Justice ("DOJ") and the Securities and Exchange Commission ("SEC") published long-awaited guidance on their interpretation of the law. Although the guidance is not binding and does not constitute new rules or regulations, it does clarify certain key provisions of the law. For example, the guidance document addresses the questions of how successor liability for FCPA violations applies in the mergers and acquisitions context, the definition of a "foreign government official," and what constitutes proper and improper gifts, travel, and entertainment expenses - all of which were sources of confusion in the regulated community. In each of these highlighted areas, the DOJ and SEC provided insight into how they will enforce the law going forward. Specifically...
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