Federal regulators have finally published their long-awaited guidance on the Foreign Corrupt Practices Act: a 120-page compendium of cases, explanations, recommendations and other observations about the law. The guidance does not seem to offer any clear affirmative defenses for FCPA violations, as many had hoped, but it's bound to give compliance officers bed-time reading for weeks. Compliance Week will have more throughout the day.
Published jointly by the Justice Department and the Securities and Exchange Commission, the guidance—“A Resource Guide to the Foreign Corrupt Practices Act”—dwells on topics such as exactly who qualifies as a foreign official under the FCPA; what constitutes a permissible gift rather than a bribe; the features of an effective anti-corruption compliance program; and the various resolutions a company can reach if it stumbles into FCPA trouble with regulators. The document is by far the most comprehensive statement about the FCPA that the government has produced in the law's 35-year history.
The guidance also expands on an audit firm's obligations when it suspects a client is bribing foreign officials; when a company should self-report a violation; and other laws that might enter the picture of an FCPA violation, such as the Travel Act, mail and wire fraud, or tax statutes.
What is not in the guide: anything that clearly stands as an affirmative defense for FCPA violations, which the compliance community has long wanted to see. The guidance does, however, review several instances where the Justice Department declined to prosecute a company because it had strong, good-faith compliance efforts. (Just this summer, the Justice Department declined to prosecute J.P. Morgan for FCPA misconduct on those very grounds.)
The guidance also prompted comment from a who's who of FCPA mavens, many of them welcoming the its arrival but not giving effusive praise.
“This voluminous Resource Guide is clearly a substantial effort to organize the government's thinking on a variety of issues that are important in understanding how to comply with the FCPA. It is not, however, a clear roadmap for compliance,” said Erich Schwartz, a partner at the law firm Skadden Aarps. “The guide largely avoids announcing new policy.”
Law professor Michael Koehler, known more commonly online as “the FCPA professor” and a vocal critic of current enforcement policy, tartly warned, “There's little new information in the guidance to those previously knowledgeable about the FCPA and its enforcement. It's important for people reading the guidance to understand that it does not represent the 'law,' but rather Justice Department and SEC interpretations of the FCPA and its enforcement policies and procedures.” Indeed, Koehler said, on subjects such as jurisdictional questions and the business nexus element, the guidance in the Resource Guide contradicts what courts have already ruled.
in part, by courts.
Still, even those critics welcomed the Resource Guide's insights about fine points of FCPA compliance. Schwartz cited the guide's material about gifts and travel policy. “That will be helpful at the margins,” he said. “Even so, the application of those principals to other situations will still require difficult judgments.”