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DOJ and SEC Issue Long-Awaited FCPA Guidance

Nov.14.2012

The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) today issued long-awaited written guidance on the U.S. Foreign Corrupt Practices Act (FCPA), in a 120-page publication entitled A Resource Guide to the U.S. Foreign Corrupt Practices Act. According to the government, the Guide aims to "provide helpful information to enterprises of all shapes and sizes – from small businesses doing their first transactions abroad to multi-national corporations with subsidiaries around the world."

The Guide covers numerous topics, including several that are at the forefront of compliance officers' minds and central to current litigation, enforcement actions, and negotiations. Topics the Guide addresses include:

  • Who and what are covered by the FCPA's bribery and accounting provisions
  • What are proper and improper gifts, travel, and entertainment expenses
  • The definition of "foreign official"
  • The scope of the facilitating payments exception
  • The affirmative defenses, such as reimbursement of reasonable travel expenses
  • How successor liability applies in the M&A context
  • The hallmarks of effective corporate compliance programs
  • Penalties, sanctions, and remedies
  • Available types of criminal and civil resolution

The Guide reflects not only the government's interpretation of the law, but also its enforcement practices, providing hypotheticals and examples of enforcement actions and declinations. The Guide also includes discussion of the impact of self-reporting, cooperation, corporate compliance programs and remedial efforts.

Understanding the Guide, which may be found here, will be essential to any company that could fall within the broad reach of the FCPA. To that end, we will issue a full analysis within the next few days.

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Alan W. H. Gourley
Partner – Washington, D.C., London
Phone: +1 202.624.2561 , +44.20.7413.1342
Email: agourley@crowell.com

Thomas A. Hanusik
Partner – Washington, D.C.
Phone: +1 202.624.2530
Email: thanusik@crowell.com

Kelly T. Currie
Partner – New York
Phone: +1 212.895.4257
Email: kcurrie@crowell.com

Stephen M. Byers
Partner – Washington, D.C.
Phone: +1 202.624.2878
Email: sbyers@crowell.com

Janet Levine
Partner – Los Angeles
Phone: +1 213.443.5583
Email: jlevine@crowell.com