Just over a year after Assistant Attorney General Lanny A. Breuer first announced plans to issue “detailed new guidance on the [FCPA’s] criminal and civil enforcement provisions,” the Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) today jointly issued this long-awaited formal guidance entitled A Resource Guide to the U.S. Foreign Corrupt Practices Act (“the Guide”).
The Guide is thought to have been originally prompted by a recommendation from the OECD Working Group on Bribery in 2010 that urged the DOJ and SEC to “clarify” FCPA requirements and “increase [the] transparency and consistency” of the agencies’ primary enforcement methods. ( See OECD Phase III Report on the U.S. Implementation of OECD Anti-Bribery Convention, October 21, 2010.)
The Guide can also be seen as a response to efforts to modify the FCPA by a coalition of business and other stakeholder organizations led by the U.S. Chamber Institute for Legal Reform ("ILR"). Key issues of concern flagged by ILR included, among other things, the definition of “foreign official” under the statute, successor and vicarious liability, the benefits of self-reporting potential violations, and transparency into charging and declination decisions by the agencies.
A thorough analysis of the Guide—120 pages in length, including appendices—will take time. At first blush, however, it appears to go beyond merely collating preexisting statements, opinions and guidance. While non-binding in nature, the Guide nonetheless looks like a thoughtful attempt to comply with the OECD recommendation and provide clarity and practical guidance to the business community.
The Guide is broken up into ten parts, plus appendices: (1) an introduction providing contextual background on the fight against corruption; (2) a summary of the FCPA’s anti-bribery provisions; (3) a summary of the FCPA’s accounting provisions; (4) an overview of other related U.S. laws, such as the Travel Act; (5) the DOJ and SEC’s guiding principles of enforcement; (6) an overview on penalties, sanctions and remedies under the FCPA; (7) an overview of the different types of resolutions; (8) a summary of the whistleblower provisions and protections; (9) a summary of DOJ opinion procedure process; and (10) a conclusion.
Among the highlights are six detailed hypotheticals scattered throughout the Guide that explore a range of questions regarding: (1) jurisdiction under the FCPA; (2) the treatment of gifts, travel and entertainment expenses; (3) the use of facilitating payments; (4) successor liability involving acquired companies that were previously subject to the FCPA; (5) successor liability involving acquired companies that were NOT previously subject to the FCPA; and (6) third-party vetting.
In response to increasing demand for the DOJ and SEC to release details of their declination decisions, the Guide also contains six recent, "anonymized" examples of matters the agencies have declined to pursue, including a brief discussion of the key factors behind the agencies’ decisions.
On its face, the Guide at least attempts address the range of concerns raised by the business community and other stakeholders, with sections addressing everything from the definition of “foreign officials” under the statute to how the agencies make charging decisions to what the benefits of voluntary disclosure, cooperation and remediation.
In compiling various sources of law and guidance on these subjects, such as recent court rulings that have established a multi-factor, fact-based test for determining when an entity can be viewed as a government instrumentality, the Guide also seeks to add to these sources with examples from actual enforcement actions and a detailed breakdown of the statutory requirements. In terms of depth, it goes far beyond what was previously provided in the DOJ’s old “Lay Person's Guide" to the FCPA.
While it is certain that the Guide will not have satisfied everyone’s concerns, particularly since the demand for things like an “adequate procedures” defense similar to the U.K. Bribery Act would require amending the FCPA, the Guide does attempt to provide readers with a better understanding of DOJ and SEC enforcement practices.
Given its length, the Guide will take some time to digest before practitioners can offer a thoughtful view of its longer-term usefulness. My initial reaction, however, is that the agencies appear to have included at least some information that will prove useful to our clients, particularly in the sections on gifts, travel and entertainment, the hallmarks of effective compliance programs, and the extended section on third-party vetting, which will all prove to be immediately useful in advising clients on real-world compliance-related challenges and bench-marking their compliance programs.
Marc Alain Bohn is a contributing editor of the FCPA Blog.