On November 14, 2012, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) jointly issued their long-awaited guidance on the Foreign Corrupt Practices Act (the “FCPA”): A Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”). The 120-page inter-agency Guide provides the most comprehensive written guidance to date on many aspects of the FCPA’s anti-bribery and accounting provisions. The Guide breaks no new ground and does not significantly change the positions previously advanced by the DOJ and SEC or address many of the nuanced questions confronting US businesses. Specifically, the DOJ and SEC did not, on a number of issues, create the hoped-for bright-line rules around key FCPA issues. Nonetheless the Guide will be a useful and accessible tool that compiles in a single source information on what the FCPA prohibits and how the statute may be applied, and provides helpful insight on the DOJ and SEC’s interpretation of the law.
What does the Guide contain?
The Guide contains, among other things, a detailed breakdown of the statute along with DOJ and SEC enforcement practices and perspectives, drawing on various sources of law and guidance, including recent enforcement actions, matters the agencies have declined to pursue, opinion releases, court decisions, the sentencing guidelines and agency memoranda.
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