After months of speculation, the Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”) jointly released the “FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act” on November 14 (the “Guide”). The Guide “is the product of extensive efforts by experts at DOJ and SEC,” and uses “hypotheticals, examples of enforcement actions and anonymized declinations, and summaries of applicable case law and DOJ opinion releases,” in its “endeavor to provide helpful information to enterprises of all shapes and sizes.”

While certainly a must-read for anyone subject to the FCPA or affiliated with an impacted entity, the Guide contains no bold new agenda, or surprising revelations. Those hoping for bright-line tests, changes in enforcement priorities, or clear pronouncements of rules will likely be disappointed. The Guide, containing no dramatic alterations in policy, largely reiterates previously announced, wide-sweeping pointers; underscores the FCPA as an area of continued enforcement priority; and emphasizes prior statements explaining that most of the relevant standards and rules are governed by fact- and risk-specific inquiries unique to each corporation, individual, and instance of alleged misconduct.

Still, the 120-page Guide and accompanying 418 endnotes is a valuable resource, providing corporations and legal practitioners a convenient single source collecting guidance, administrative opinions, relevant regulations and statutes, case law, prior releases and dispositions, treaties, and best-practices on all topics relevant to the FCPA. And, in a disclosure of previously unreleased information, the Guide includes summaries of six investigations that did not result in enforcement actions—each underscoring the priority regulators place on internal investigations, timely and voluntary self-reporting, and robust compliance programs tailored to a corporation’s unique risks. (See Pages 77–79.)

Highlights from the Guide include:

Defining Anything of Value: Regardless of size, for a gift or other payment to violate the statute, the payor must have corrupt intent—that is, the intent to improperly influence the government official. [I]t . . . is difficult to envision any scenario in which the provision of cups of coffee, taxi fare, or company promotional items of nominal value would ever evidence corrupt intent, and neither the DOJ nor SEC has ever pursued an investigation on the basis of such conduct. . . . DOJ’s and SEC’s anti-bribery enforcement actions have focused on small payments and gifts only when they comprise part of a systemic or long standing course of conduct that evidences a scheme to corruptly pay foreign officials to obtain or retain business. (Pages 14–15.)

Appropriate Parameters for Gifts & Hospitality: A small gift or token of esteem or gratitude is often an appropriate way for business people to display respect for each other. Some hallmarks of appropriate gift-giving are when the gift is [1] given openly and transparently, [2] properly recorded in the giver’s books and records, [3] provided only to reflect esteem or gratitude, and [4] permitted under local law. (Page 15; for “examples of improper travel and entertainment” see Page 16.)

The Reasonable and Bona Fide Expenditures Affirmative Defense: [I]t is an affirmative defense where expenses are directly related to the promotion, demonstration, or explanation of a company’s products or services, or are related to a company’s execution or performance of a contract with a foreign government or agency. (Page 24; for a “non-exhaustive list of safeguards” “helpful to businesses in evaluating whether a particular expenditure is appropriate” see Page 24.)

Controls on Charitable Contributions: Proper due diligence and controls are critical for charitable giving. (Page 19; for a list of specific “due diligence measures and controls” that have historically lead to pre-approval of charitable grants and donations by the DOJ see Page 19.)

Defining A Foreign Official: [T]he FCPA broadly applies to corrupt payments to “any” officer or employee of a foreign government and to those acting on the foreign government’s behalf. . . . Foreign officials under the FCPA include officers or employees of a department, agency, or instrumentality of a foreign government. . . . The term “instrumentality” is broad and can include state-owned or state-controlled entities. Whether a particular entity constitutes an “instrumentality” under the FCPA requires a fact-specific analysis of an entity’s ownership, control, status, and function. (Page 20.)

Third Parties and Intermediaries: Because Congress anticipated the use of third-party agents in bribery schemes—for example, to avoid actual knowledge of a bribe—it defined the term “knowing” in a way that prevents individuals and businesses from avoiding liability by putting “any person” between themselves and the foreign official. (Page 22; for a list of “common red flags associated with third parties” see Pages 22–23.)

Facilitating or Expediting Payments: Whether a payment falls within the exception is not dependent on the size of the payment . . . . [T]he facilitating payments exception focuses on the purpose of the payment rather than its value. (Page 25; for “examples of routine governmental action” appropriate under the exception see Page 25.)

Extortion and Duress: Situations involving extortion or duress will not give rise to FCPA liability because a payment made in response to true extortionate demands under imminent threat of physical harm cannot be said to have been made with corrupt intent or for the purpose of obtaining or retaining business. . . . Mere economic coercion, however, does not amount to extortion. (Page 27.)

Successor Liability: Successor liability applies to . . . FCPA violations. DOJ and SEC encourage companies to conduct pre-acquisition due diligence and improve compliance programs and internal controls after acquisition, . . . [and] DOJ and SEC will give meaningful credit to companies who undertake these actions. (Page 28; for “practical tips” focusing on appropriate, risk-based due diligence see Pages 28–29.)

DOJ Considerations When Deciding Whether to Open an Investigation or Bring Charges: Nine factors are considered in conducting an investigation determining whether to charge a corporation, and negotiating plea or other agreements: [1] the nature and seriousness of the offense, including the risk of harm to the public; [2] the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by corporate management; [3] the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory enforcement actions against it; [4] the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents; [5] the existence and effectiveness of the corporation’s pre-existing compliance program; [6] the corporation’s remedial actions, including any efforts to implement an effective corporate compliance program or improve an existing one, replace responsible management, discipline or terminate wrongdoers, pay restitution, and cooperate with the relevant government agencies; [7] collateral consequences, including whether there is disproportionate harm to shareholders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution; [8] the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance; and [9] the adequacy of remedies such as civil or regulatory enforcement actions. (Page 53.)

Attorney-Client Privilege: [I]n assessing a corporation’s cooperation, prosecutors are prohibited from requesting attorney-client privileged materials with two exceptions—when a corporation or its employees asserts an advice-of-counsel defense and when the attorney-client communications were in furtherance of a crime or fraud. (Page 53.)

SEC Considerations When Deciding Whether to Open an Investigation or Bring Charges: In determining whether to open an investigation, and if so, whether an enforcement action is warranted, SEC staff considers a number of factors, including the statutes or rules potentially violated; the egregiousness of the potential violation; the potential magnitude of the violation; whether the potentially harmed group is particularly vulnerable or at risk; whether the conduct is ongoing; whether the conduct can be investigated efficiently and within the statue of limitations period; and whether other authorities, including federal or state agencies or regulators, might be better suited to investigate the conduct. (Pages 53–54.)

Benefits of Voluntary, Self-Disclosure: [T]he Sentencing Guidelines . . . take[] into account an organization’s remediation as part of an “effective compliance program.” . . . Similarly, an organization’s self-reporting, cooperation, and acceptance of responsibility may lead to fine reductions. (Page 54; for the SEC’s “basic” framework for “evaluating cooperation by companies” see Page 55.)

Corporate Compliance Programs: DOJ and SEC have no formulaic requirements regarding compliance programs. Rather, they employ a common-sense and pragmatic approach to evaluating compliance programs, making inquiries related to three basic questions: Is the company’s compliance program well designed? Is it being applied in good faith? Does it work? (Page 56; see also Page 40.)

Emphasizing that there is “no one-size-fits-all program,” and cautioning against a “‘check-the-box’ approach,” the Guide identifies and discusses the key “[h]allmarks of effective compliance programs.” (See Pages 56–66.)

DOJ and SEC Considerations When Determining Whether a Compliance Monitor Is Appropriate: Seriousness of the offense; Duration of the misconduct; Pervasiveness of the misconduct, including whether the conduct cuts across geographic and/or product lines; Nature and size of the company; Quality of the company’s compliance program at the time of the misconduct; Subsequent remediation efforts (Page 71.)