In what the agencies describe as “an unprecedented undertaking by DOJ and SEC to provide the public with detailed information about our FCPA enforcement approach and priorities,” the U.S. Department of Justice has just released its much anticipated Resource Guide to the U.S. Foreign Corrupt Practices Act (FCPA), available for download from both the DOJ and SEC websites.
In part, the Guide addresses the recommendation from the OECD Working Group on Bribery, United States: Phase 3, Report on the Application of the Convention on Combating Bribery of Foreign and the 2009 Revised Recommendation on Combating Bribery in International Business Transactions, Oct. 2010, at 61-62 (recommending that the United States “[c]onsolidate and summarise publicly available information on the application of the FCPA in relevant sources”).
Statutory Requirements and Enforcement Practices
Intended to provide businesses and individuals with a nuanced understanding of the U.S. Foreign Corrupt Practices Act (FCPA), the guide does a stellar job at setting out some of the statutory requirements of the act and then providing insight into DOJ and SEC enforcement practices, using hypothetical examples of enforcement actions and summaries of applicable case law and DOJ opinion releases. It is applicable to both small businesses engaged in their first transactions abroad to and to large multi-national corporations with subsidiaries around the globe.
Some of the sections that are likely to provide especially useful information may include:
- What Jurisdictional Conduct Triggers the Anti-Bribery Provisions?
- What Does DOJ/SEC Consider When Deciding Whether to Open an Investigation or Bring Charges?
- Examples of Past Declinations [to take any legal action] by DOJ and SEC
- What Affirmative Defenses Are Available?
- Self-Reporting, Cooperation, and Remedial Efforts
- Corporate Compliance Programs and Hallmarks of Effective Compliance Programs
- Does the FCPA Apply to Cases of Extortion or Duress?
- When Is a Compliance Monitor or Independent Consultant Appropriate?
- Successor Liability
- Deferred Prosecution Agreements and Non-Prosecution Agreements (for both the DOJ and SEC)
In the chapter “On Whistleblower Provisions and Protections,” the curious may be elated or disappointed to see that the DOJ and SEC did not clarify whether or not the whistleblower provisions under Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act of 2010 (which would cover those reporting FCPA violations) should be read as extending these protections outside the U.S.
It is potentially important to note that the guide is non-binding, informal, and does not create any new rules or regulations. Therefore, it is not intended to be strictly relied upon to create any rights that are enforceable in any criminal, civil, or administrative matter. Nor is it intended to substitute for the advice of legal counsel and it does not in any way limit the U.S. Department of Justice, the Securities and Exchange Commission, or any other U.S. government agency in any enforcement intentions or litigation position.
But all in all, a potentially very useful document from which information can be minded to assist organizations in avoiding and/or managing these exposures.
More About the Guide
Here are some good write-ups of the guide:
- The New FCPA Guidance: the Best Advice You Can Get For Free, by Ryan McConnell and Charlotte Simon, Corp0rate Counsel, November 15, 2012
- Extra! Extra! After much delay, the US Department of Justice and US Securities and Exchange Commission issue their long-awaited Resource Guide on the FCPA, Daily GRC Digest, November 14, 2012
- FCPA Guidance Is Here, by Joe Palazzolo, The Wall Street Journal Law Blog, November 14, 2012