On November 14, 2012, the Department of Justice ("DOJ") and Securities Exchange Commission ("SEC") jointly released a 120-page publication titled " FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act" (the "Guide"). This "unprecedented undertaking" offers guidance on:
- the national and international anti-corruption enforcement landscape
- many key aspects of the FCPA's anti-bribery and accounting provisions, including the Act's affirmative defenses and facilitating payments exception
- the Act's applicability to different types of businesses and individuals
- other U.S. laws related to the government's efforts to combat foreign bribery
- the principles guiding DOJ and the SEC's enforcement and charging decisions
- the hallmarks of an effective anti-corruption compliance program
- penalties, sanctions, remedies and collateral consequences
- resolutions including deferred prosecution agreements, non-prosecution agreements and compliance monitors
- whistleblower provisions and protections.
The Guide draws on DOJ opinion releases previously issued to individual companies, numerous examples from prior DOJ and SEC enforcement actions, decisions issued by federal trial and appellate courts, and some FCPA "lore" and makes its consolidated guidance accessible to a wider audience, including in particular smaller and medium sized companies. The format includes multiple hypothetical fact patterns, analysis and practical tips addressing topics such as jurisdiction under the FCPA; gifts, travel and entertainment expenses; successor liability; and third party due diligence.
Significantly, DOJ reports that in the past two years alone, DOJ has declined to prosecute "several dozen cases against companies where potential FCPA violations were alleged." DOJ and the SEC provide six anonymized examples of matters they declined to pursue, along with some of the relevant factors considered in reaching their determinations.
Although the Guide clearly is a useful tool for both businesses and practitioners, it breaks no new ground and, not surprisingly, tends to avoid bright-line standards. Some parts of the Guide, however, will be of particular interest including discussion of the issue of who qualifies as a "foreign official" and what constitutes an arm of a foreign government, particularly where an entity has less than 50 percent government ownership, a topic that has recently been the subject of considerable litigation and commentary; and an extensive discussion regarding the provision of gifts, travel and entertainment, including the proverbial cup of coffee, which are of perpetual concern to businesses and compliance professionals. Notably missing is new guidance or significant relief from enforcement in certain circumstances for which some in the business community have advocated, including with respect to companies that have instituted effective anti-corruption compliance programs, self-reported alleged violations of the FCPA, or acquired through merger or acquisition other companies with past FCPA violations.
DOJ Assistant Attorney General Lanny A. Breuer and SEC Division of Enforcement Director Robert Khuzami announced the publication of the Guide at a news briefing on November 14, 2012. The associated press releases can be found here and here. Mr. Khuzami's remarks during the briefing can be found here.