FCPA Reform Efforts and Anti-Corruption Enforcement

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Highlights

- New Department of Justice (DOJ) guidance on the FCPA expected later this year to address a range of issues important to corporate compliance programs.

- Lawmakers appear content to await the new guidance before introducing legislative reforms.

- A period of repose in which post-acquisition due diligence could be conducted would facilitate economic growth at home and abroad while ensuring improper conduct is discovered and corrected.

A growing number of US businesses, attorneys and lawmakers have called for reforms to the US Foreign Corrupt Practices Act (“FCPA”) and the current anti-corruption enforcement regime over the past two years. Despite the broad range of advocates and bipartisan interest for reform on Capitol Hill, whose consideration of possible reform included a hearing in June 2011 before the House Subcommittee on Crime, Terrorism, and Homeland Security, legislation to amend the FCPA has yet to be introduced. Instead, lawmakers appear content to await the DOJ’s new guidance on the Act, which was announced in November 2011 and is expected to be released later this year. Senators Amy Klobuchar (D-MN) and Chris Coons (D-DE), members of the Senate Judiciary Committee, nevertheless wrote Attorney General Eric Holder in February 2012, urging the DOJ to provide US companies with clear rules by issuing guidance that addresses, among other areas, ambiguous terms used in the FCPA, the requisite level of intent to impute liability to a corporation, the expectations for corporate compliance programs, and the benefits for cooperating with investigations of the DOJ and Securities and Exchange Commission (“SEC”).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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