On November 14, the Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange Commission released long-awaited guidance on the Foreign Corrupt Practices Act (FCPA). The FCPA was enacted in 1977 and contains both anti-bribery and accounting provisions aimed at eliminating corruption within, and increasing the transparency of, United States corporations operating abroad. The key component of the FCPA is a prohibition against bribing foreign officials and a requirement that companies keep accurate and transparent books and records when dealing with foreign entities. According to the Department of Justice and the SEC, the new guide aims to help public companies better understand the FCPA in order to prevent violations of the FCPA, which in turn will better protect investors in those companies.
Although significant legal ambiguities still remain within the FCPA, the new guide offers some additional insights into the Department of Justice’s and SEC’s views of the statutory requirements of the FCPA, such as what they view as a de minimus gift to a foreign official. The guide also provides actual examples of enforcement actions and, more importantly, instances where enforcement actions were never brought because of a company’s self-reporting and robust compliance measures.
It is important to note that the guide represents the Department of Justice’s and SEC’s views and interpretations of the FCPA, which is invaluable in predicting how they will enforce and prosecute FCPA violations, but the guide is in no way binding on the courts. Indeed, in certain instances courts have rejected some of the views expressed therein.
A Resource Guide to the U.S. Foreign Corrupt Practices Act by the Criminal Division of the US Department of Justice and the Enforcement Division of the US Securities and Exchange Commission is available here.