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DOJ Guidance on FCPA Expected in Next Two Weeks

Bruce Carton | September 26, 2012

It's coming ... soon ... supposedly.

Sometime in the next two weeks, the Department of Justice is expected to release its long-awaited guidance on the the Foreign Corrupt Practices Act. The WSJ reported in August that the DOJ plans to release the guidance prior to the October 10 meeting of the Organization for Economic Co-operation and Development's anti-bribery working group. Both the DOJ and the SEC are expected to send representatives to the meeting.

The business community has been waiting for this FCPA guidance since November 8, 2011, when Assistant Attorney General Lanny Breuer stated in a speech that in 2012 the DOJ planned to “release detailed new guidance on the [FCPA's] criminal and civil enforcement provisions.” According to Mike Koehler (aka "The FCPA Professor"), many people in the FCPA field believe that Breuer's announcement was an effort to head off possible legislative reforms to the FCPA. Groups such as the U.S. Chamber of Commerce have been aggressively lobbying for changes to the FCPA such as an affirmative "compliance defense" for companies with pre-existing compliance policies and a good faith commitment to FCPA compliance.

Koehler tells me that he, too, believes that the DOJ guidance will be issued prior to the OECD meeting in Paris "to allow for a certain amount of domestic absorption prior to the international meeting." Koehler questions whether the guidance will break a lot of new ground, however, saying that he expects "that there may be some new issues not previously addressed by the DOJ or SEC along the margins, but that the bulk of the guidance will be the enforcement agencies restating in one document prior positions that are found in scattered locations such as court filings, speeches, and the like."

Hopefully we will learn much more in the next two weeks.