DOJ and SEC Release Second Edition of the FCPA Resource Guide

On July 3, 2020, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released the second edition of the Resource Guide to the U.S. Foreign Corrupt Practices Act (2020 Guide), the first update to the Guide in nearly 10 years. Like the first edition, which was released in November 2012, the 2020 Guide does not break any meaningful new ground. Instead, the 2020 Guide refreshes and updates the prior Guide in three main ways. First, the new edition incorporates significant policies that have been released by the DOJ since the first edition - for example, the Corporate Enforcement Policy (CEP). Folding these new policies into the 2020 Guide reinforces the DOJ’s stated goal of providing more guidance about the information considered and the standards applied when assessing and resolving Foreign Corrupt Practices Act (FCPA) matters with corporate entities. Second, the 2020 Guide incorporates the recently decided and, in some cases, contested court decisions in the Kokesh, Hoskins and Esquenazi matters and sounds some critical notes as to the general applicability of the decisions in Hoskins and Kokesh by rejecting the holdings in these cases as not yet final or generally applicable. Third, the new edition updates case examples, referring to more recently resolved matters and adding those that illustrate new developments in the field; for example, the 2020 Guide highlights the “connected hiring” cases as illustrations of what constitutes a “thing of value” under the statute.

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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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