Compliance Bricks and Mortar: FCPA Guidance Edition

The big news in compliance this week was the release of the  Resource Guide to the U.S. Foreign Corrupt Practices Act (.pdf). But I have only had a chance to glance at it briefly. I’m underwhelmed, even after having low expectations. Since I have not read much, I’m posting the views of many others:

Guidance Roundup by the FCPA Professor

This post provides a roundup of commentary (law firm, individuals, and civil society organizations) relating to this week’s FCPA guidance issued by the DOJ and SEC.

Guidance; Courtesy of the Government by Scott Greenfield in Simple Justice

All of which means we know absolutely nothing more than before. Well played, government. Well played.

The guidance? Of course it’s non-binding by Richard L. Cassin in the FCPA Blog

On the inside front cover of the joint DOJ and SEC guidance released Wednesday, there’s a disclaimer that what follows is non-binding. ‘As such,’ the disclaimer continues, ‘it is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party, in any criminal, civil, or administrative matter. . . It does not in any way limit the enforcement intentions or litigating positions of the U.S. Department of Justice, the U.S. Securities and Exchange Commission, or any other U.S. government agency.’

SEC’s Khuzami: We’re not interested in small potatoes by The FCPA Blog

It’s an ambitious effort to lay out how the government interprets and applies the FCPA, in order to educate companies about how to prevent their employees from violating the law, and educate employees about the limits of permissible conduct.

The Guidance: The FCPA Bar Reacts by Samuel Rubenfeld, Joe Palazzolo and C.M. Matthews in WSJ.com’s Corruption Currents

After waiting waiting roughly a year for guidance on the Foreign Corrupt Practices Act, everyone and their lawyer had something to say about it Tuesday. Here’s a sampling of the initial reactions: …

Feds Declined to Prosecute Dozens of FCPA Cases Over Past Two Years in the Corporate Crime Reporter

“To protect the privacy rights and other interests of the uncharged and other potentially interested parties, the Department of Justice has a long-standing policy not to provide, without the party’s consent, non-public information on matters it has declined to prosecute,” the authors write. “There are rare occasions in which, in conjunction with the public filing of charges against an individual, it is appropriate to disclose that a company is not also being prosecuted.”

FCPA Declination Opinions? SEC and DOJ Sort of Have Them by David Smyth in Cady Bar the Door

One of the things the guidance does at least scratch the surface of are instances in which the two agencies have come across FCPA violations that they have declined to prosecute.  As we have covered in this space before – and certainly others as well – the SEC and DOJ have been notoriously tight-lipped about those cases.  They exist, of course.  We learned yesterday that the Justice Department has declined several dozen potential FCPA cases against companies in just the last two years.  And the agencies might figure out a way to describe them discreetly, with a view toward defining (1) the contours of appropriate conduct and (2) productive self-reporting to and cooperation with the government.
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