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After the FCPA Guidance, What Then?

Matt Kelly | October 14, 2012

While we all wait for the Justice Department to issue its fabled new guidance on the Foreign Corrupt Practices Act, let's pause for a moment to consider a few other questions. Why is the Justice Department doing this? Why now? And what happens to FCPA enforcement after the guidance is published?

The various talking heads I know in Washington tell me that Assistant Attorney General Lanny Breuer is planning something akin to the McNulty Memo—the guidance issued in 2006 by then-Deputy Attorney General Paul McNulty, which brought more clarity to the Justice Department's expectations for corporations' cooperation in misconduct investigations back then. The McNulty Memo was only the latest incarnation in a series of memos from high-ranking Justice officials dating back to the 1990s, each one building on its predecessor and shedding more light on how corporate compliance functions should work.

This FCPA guidance, my contacts tell me, could well be dubbed “the Breuer Memo” when it finally arrives. It will be devoured by corporate legal officers and Big Law firms alike. Will it offer any affirmative defenses for FCPA violations, as the rumor mill speculates? It should, but I don't know that it will. Likewise, it should address the headache of successor FCPA liability in mergers and acquisitions, which has tripped up a who's who of Corporate America. In my opinion, clarity on that point is even more important than any affirmative defenses. But again, I don't know that it will be addressed in the guidance either.

I do know that we should not expect the Breuer Memo to include many concrete promises or bright-line tests that corporate compliance departments could apply to their operations; Breuer is still a regulator, and regulators always want as much leeway as possible to act as they see fit. Concrete promises and bright-line tests are the antithesis of that discretion. Don't bet on seeing any.

Why now? Well, Breuer has been assistant attorney general and head of the Criminal Division at the Justice Department since 2009—nearly the entire length of the Obama Administration's first term, an extraordinarily long tenure for someone in that job. Presumably Breuer is looking to exit the department after the presidential election no matter who wins, and a Breuer Memo on FCPA compliance would be a great way both to leave on a high note, and to affix his imprimatur on anti-corruption enforcement long after he leaves office.

Let's remember that even if Mitt Romney is elected president (still a big if), any real reforms to the FCPA will need to come from Congress, and Republicans simply aren't going to win enough seats in Congress to get that done—assuming they would even want wholesale reform of the FCPA at all, an assumption nobody reading Compliance Week should make.

Rather, the FCPA reforms that would really matter to you, the compliance executive frantically trying to stamp out bribery schemes all over the world, will come from the Justice Department. The department still has enormous discretion to decide which cases to investigate, and how to dispose of them depending on the target's past history and cooperation. That will be true no matter how Congress tinkers with the FCPA. Breuer is in a position to act, and he knows it.

Breuer's choices, then, are either to leave the opportunity to set FCPA guidance to his successor in a new Obama Administration, and thus give away the regulatory power he's acquired since 2009; give that same opportunity to a new appointee in a Romney Administration, who could reverse Breuer's legacy in any number of ways; or act now, and appear magnanimous if the guidance does indeed address the heavy compliance burdens that exist today.

We'd be foolish to ignore the profit motive, too: Breuer will be in the private sector again soon enough, representing companies ensnared in FCPA probes. He'll be able to command quite a premium if he can legitimately say, “I know how the Justice Department will interpret its FCPA guidance, because I wrote it.” I don't believe that career advancement is why Breuer is pushing for this guidance, but the fact remains that he stands to reap more money because of it.

The larger question—one that will linger long after Breuer publishes his guidance and leaves, and one that probably permeates the Justice Department's thinking now—is this: How we as a society can keep the push against corruption moving forward? At least, I hope that's the question occupying Breuer's mind, because while compliance with the FCPA is a pain, the ultimate goal is admirable. The future of FCPA enforcement should always be seen through that lens of keeping the push against corruption alive.

When you do consider the question that way, a few other thoughts do arise. First, the key to moving forward is widespread support. That means we should expect our FCPA guidance here to be along the lines of its younger legislative cousin in Britain, the Bribery Act; regulators there published new Bribery Act guidance just last week. Corruption is a global problem, and in today's modern corporation, corruption schemes can have global reach—so our regulators worldwide should, ideally, start falling into lockstep about how they're going to treat it.

Second, however, is the reality that to persuade large numbers of people to change, you have to let them fail along the way, so they'll try again and keep reaching forward. Those “large numbers of people” are you, the corporate officers charged with trying to root out corruption. Right now you live too much in a zero-tolerance world, that builds frustration far more than it does ethical character. So let's hope that Breuer's guidance includes some affirmative defenses and room for failure. Both are sorely needed.