Much has been said about what is missing from the new FCPA Resource Guide (the Guide) published by the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), linked here. Here, we consider instead the areas in which – true to its name – the Guide offers some helpful guidance. Specifically, based on our experience of representing companies and individuals before the DOJ and SEC, this article describes four areas in which the Guide taught us something new or called into question what we thought we knew about the FCPA.
The Guide provides some helpful parsing of the somewhat complex set of rules of personal jurisdiction under the FCPA. It confirms familiar bases for jurisdiction: issuers and domestic concerns are subject to the FCPA by virtue of nationality, and foreign entities may be subject by way of the territoriality principle for acts committed in the United States in furtherance of a violation. But the Guide steps onto somewhat less familiar ground in stating that FCPA jurisdiction exists over “a foreign national or company . . . [that] aids and abets, conspires with, or acts as an agent of an issuer or domestic concern, regardless of whether the foreign national or company itself takes any action in the United States.”
The idea that an accomplice may be held liable for the underlying crime is familiar. But basing jurisdiction over the person on the fact that the person was an accomplice is a less well known principle. In support this principle, the Guide cites the criminal information documents filed in the prosecutions of JGC Corporation and Snamprogetti Netherlands. Snamprogetti doesn’t seem to be a good case for this principle. In that case, the government could have based jurisdiction on territoriality, since Snamprogetti is alleged to have caused the transfer of money into a U.S. bank account. Perhaps more availing is the Guide’s citation to the JGC case. In that matter, the Government rested its assertion of jurisdiction over JGC on the theory that JGC had aided and abetted violations and conspired with persons committing acts in the United States, without alleging any activity by JGC in the United States. But that theory was not tested in court, since the company settled the case without litigating to challenge the government’s jurisdiction over it. More generally, although the concept of asserting personal jurisdiction over foreign conspirators has a robust history in litigation under state long-arm statutes in civil cases, the applicability to criminal jurisdiction is less well established.
Nevertheless, the concept of accomplice jurisdiction portends a clear threat to non-U.S. companies with no direct dealings in the United States, if they engage in bribery conspiracies with accomplices subject to U.S. law. The Guide’s insistence that accomplice liability is a viable basis for jurisdiction, therefore, reiterates the government’s commitment to the continuous expansion of the FCPA’s reach.
Corporate Mens Rea
“Proof of willfulness is not required to establish corporate criminal or civil liability” for violating the FCPA. There is no real news there. As the Guide points out, this distinction is evident from a comparison of the plain language of various provisions of the statute, as shown in the table below:
Click here to view table.
What is interesting is that the Guide goes out of its way to point out this distinction. Industry groups had sought an interpretation holding that proof of willfulness would be required to establish corporate liability under the FCPA; DOJ now has reiterated its clear position that proof of corrupt intent is all that is required. It may also be interesting to see what real difference this makes in practice. On paper, the distinction does not paint a clear difference: corrupt intent, according to the Guide, is “an intent or desire to wrongfully influence the recipient.” On the other hand, the term “willfully” generally has been construed by courts to connote “an act committed voluntarily and purposefully, and with a bad purpose, i.e., with knowledge that [a defendant] was doing a ‘bad’ act under the general rules of law.”
So, to prove a company violated the FCPA, the government must show the company acted with the purpose to “wrongfully influence” someone. For an individual, on the other hand, the government must show that the defendant had a “bad purpose” and that the purpose was to wrongfully influence someone. It may well be that the two standards are different, but the Guide does not go to great lengths to clarify that difference.
Gifts & Entertainment
Finally, some hypotheticals you can use. The Guide dedicates a lot of room to illustrative examples, almost two full pages of which provide hypotheticals with definitive answers to whether specific gifts, travel, or entertainment violate the FCPA’s anti-bribery provisions. There is no denying that the Guide’s hypotheticals are helpful. They reach differing conclusions based on what is offered, to whom, and for what purpose. The Guide thereby provides welcome confirmation that the U.S. government is willing to apply a rule of reason to gifts, travel, and entertainment.
This section of the Guide has been dismissed by some commentators as common sense. But to us, it is a pleasant surprise that the Guide makes some unequivocal and thoroughly reasonable statements about gifts and entertainment that are at odds with general statements made by DOJ and SEC personnel in the past. For example, the Guide rightly observes that “a small gift or token of esteem or gratitude is often an appropriate way for business people to display respect for each other,” and concludes that “[i]tems of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action.” While merely stating the facts, the language of the Guide is uncharacteristically forthright.
Yet Untold: Declinations
Deep in the Guide is buried a small – but valuable – treasure: an outline of circumstances present in certain matters in which the government recently has declined to bring an enforcement action. While the Guide does not provide the names or specific details surrounding the declinations (consistent with DOJ policy), it nevertheless spells out factors that contributed to the declination decisions in six recent cases. They include facts that demonstrate good faith, reasonable inquiry, cooperation, candor, and effective remediation. The factors are presented to demonstrate that (in some cases, at least) the government is willing to excuse violations where a company apparently acted in good faith.
The Guide offers a great deal of information about FCPA compliance, violations, investigations, and prosecutions – some of which is newsworthy and some of which suggests a potential policy shift by the government. The key to making full use of the Guide, as with any government guidance, lies in parsing the details and in carefully applying the lessons learned to a specific proposed business transaction.