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.
