On Nov. 14, 2012, the Department of Justice and the Securities and Exchange Commission released a joint 130-page Resource Guide to the U.S. Foreign Corrupt Practices Act (“FCPA”). This long-anticipated guidance lays out the federal government’s FCPA enforcement approach and priorities. Specifically, the Guide:
- Analyzes the FCPA’s anti-bribery and accounting provisions (pp. 10-45);
- Sets forth the DOJ’s and SEC’s guiding principles for FCPA enforcement (pp. 52-65);
- Explains the penalties, sanctions, and remedies for FCPA violations (pp. 68-72); and
- Outlines the various ways that the government resolves civil and criminal FCPA matters (pp. 74-79).
The Guide addresses several issues of particular interest to companies with operations potentially at risk under the FCPA. The government’s guidance does state that “it is difficult to envision any scenario in which the provisions of cups of coffee, taxi fare, or company promotional items of nominal value,” or other “small gift or token of esteem or gratitude,” would “ever evidence corrupt intent.” See p. 15. The guidance, however, contains no significant or meaningful narrowing of the government’s historically broad interpretation of the term, “foreign official.” The guidance provides that even a foreign government’s minority ownership stake can qualify an entity as an instrumentality of that government under the FCPA. See p. 21.
We will provide a detailed analysis and summary of this new FCPA guidance, and how its provisions may impact our clients, in our securities enforcement briefing for the fourth quarter of 2012.