New FCPA Guidance Provides Insight Into Government’s View of Corporate Compliance

On November 14, 2012, the Foreign Corrupt Practices Act “Resource Guide” (the “Guidance”) was finally published, and at well over 100 pages, it constitutes a “non-binding informal summary” of various statutes, U.S. Department of Justice pronouncements and opinion releases, enforcement actions and settlements. While the Guidance offers no new substantive statutory interpretations, procedural reforms or formal policy statements, it does offer insights into how the government assesses corporate behavior, compliance and liability, as well as what mitigation factors can influence the enforcement decision process.

As FCPA enforcement has dramatically expanded over the last ten years, the business community and the U.S. Chamber of Commerce have been increasingly vocal in calls for legislative reform. Although the FCPA has been the basis for dozens of enforcement actions, billions of dollars in criminal and civil fines, and several jail terms, trials have been few, and unlike other prominent criminal statutes (e.g., Sherman Act, Clean Air Act), there is very little case law, and no formal agency regulations, interpreting the Act. As a result, many corporate citizens have felt unsure as to how to conform their conduct to the law, and unclear as to the government’s perspectives on consistent application and enforcement, as well as the proper exercise of its prosecutorial discretion. Movement towards legislative reform was accelerating, although very public allegations against Wal-Mart earlier this year, combined with election year politics, largely stalled that effort. In what was widely seen as an attempt to stave off action from Congress, the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) promised written guidance, which was published late last week.

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