[authors: Catherine Kevane; Alexis I. Caloza; Susan S. Muck]
The past several years have seen a dramatic increase in the number of enforcement actions brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) under the Foreign Corrupt Practices Act (FCPA). On November 14, 2012, the DOJ and SEC issued their long-awaited guidance on the FCPA entitled "A Resource Guide to the U.S. Foreign Corrupt Practices Act" (the "Guide").1 The Guide does not provide the FCPA reform some in the business community were hoping for and is largely in line with prior government commentary. Nevertheless, and despite the caveat that the Guide is "non-binding, informal, and summary in nature" and that FCPA enforcement actions are evaluated on a case-by-case basis; the Guide provides useful insight into the regulators' views on commonly-encountered issues, enforcement priorities, and best practices for FCPA compliance programs. For that, the Guide will become a go-to resource for understanding the principles applied by the DOJ and SEC in evaluating and prosecuting FCPA cases.
Following are summaries of the Guide, much of which reiterates the principles from the DOJ Layperson's Guide and prior statements by regulators:
Meaning of Foreign "Instrumentality"
Gifts, Travel and Entertainment
Reasonable and Bona Fide Expenditures
"Facilitating" or "Expediting" Payments
Avoiding Successor Liability
Books and Records
Effective Internal Controls
Self-Reporting, Cooperation and Remedial Efforts
Best Practices for Effective Compliance Programs
Third-Party Due Diligence and Payments
1The Guide is available free of charge at http://www.justice.gov/criminal/fraud/fcpa/guidance/ and www.sec.gov/spotlight/fcpa.shtml.