On the inside front cover of the joint DOJ and SEC guidance released Wednesday, there's a disclaimer that what follows is non-binding.
'As such,' the disclaimer continues, 'it is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party, in any criminal, civil, or administrative matter. . . It does not in any way limit the enforcement intentions or litigating positions of the U.S. Department of Justice, the U.S. Securities and Exchange Commission, or any other U.S. government agency.'
The feds got it right.
If they'd said, 'This guidance is binding and changes the FCPA as enacted by the U.S. Congress, signed into law by the President of the United States, and applied and interpreted by Federal Courts of the U.S.,' then we'd be worried.
So we're surprised the disclaimer is a problem for anyone. But it is.
Dan Froomkin in the Huffington Post said Wednesday:
Those who are looking for changes to the law are unlikely to be satisfied, however. Mike Koehler, who teaches as the Southern Illinois University School of Law and runs the FCPA Professor blog, noted that "the most important words" are in a note that declares that the guidance is non-binding and "does not in any way limit the enforcement intentions or litigating positions" of the DOJ or SEC.
"What FCPA enforcement needs at this critical juncture is not non-binding guidance, but limited structural reforms," Koehler said.
The FCPA isn't a perfect law. And the way it's enforced is sometimes a problem.
But the division of labor is right.
The enforcement agencies can't amend the law. Only Congress and the President can do that.
Is it the job of the DOJ or SEC to restrict their own liberty to enforce the statute beyond what the courts might require? Of course not.
Does the guidance change the big picture?
No it doesn't. But it's helpful.
What's written about the FCPA is usually filtered by pundits, academics, lawyers and others who have their own point of view. Now we have the government's view, in its own words.
It doesn't mean everyone has to agree with the way the feds interpret the FCPA. Defense lawyers will still have a job to do. And courts may eventually say some of the DOJ's interpretations of the law are wrong.
But until that happens, it's nice to know exactly how the DOJ and SEC view it.