DOJ and the SEC issue much‐anticipated FCPA guidance

Abstract

PurposeThe purpose of this paper is to explain the joint guidance on the US Foreign Corrupt Practices Act (FCPA or the Act) published on November 14, 2012 by the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC).Design/methodology/approachThe paper explains the principal provisions of the Act covered in the joint guidance, where the joint guidance sheds light, and where it leaves uncertainty. Key issues covered are jurisdiction; corrupt intent, knowledge and willfulness; the “business purpose” test; gifts, travel and entertainment expenses; charitable contributions; definitions of foreign officials and instrumentalities; third parties; facilitating payments; extortion/duress; successor liability; accounting provisions; compliance programs; compliance monitors; and prosecution, resolution and declination decisions.FindingsWhile it is unprecedented in federal law enforcement that the DOJ and SEC have provided the public with such detailed information on their joint FCPA enforcement approach and priorities, the guidance does not break new ground and generally reaffirms positions the agencies have previously espoused in other contexts. The guidance leaves open some difficult issues facing compliance officers and practitioners.Originality/valueThe paper provides expert guidance by experienced financial services lawyers.