The recently-announced (and long-awaited) FCPA Guidance is not only explicitly non-binding on government enforcers, but it is also lacking any true “news” concerning the Department of Justice’s (DOJ) and Securities and Exchange Commission’s (SEC) FCPA enforcement positions. That said, the guidance, issued on Nov. 14, does add significant value by collecting the agencies’ prior opinions and providing helpful clarifications and hypothetical case studies for corporate counsel.
The guidance, moreover, highlights the importance of effective anti-corruption compliance programs, identifying the basic elements the DOJ and the SEC consider when evaluating such programs. More specifically, the 120-page guidance addresses, among other things:
- The definition of a foreign official
- Gifts and entertainment
- The “hallmarks” of an effective corporate compliance program
Even though the guidance does not represent a significant departure from the agencies’ prior positions, it does offer a compendium of FCPA enforcement positions that corporate counsel as of this writing no doubt are, for good reason, carefully reviewing.
The attention heaped on the guidance is understandable. But from the perspective of companies or individuals facing potential anti-corruption enforcement action, there has been other recent news that may well deserve similar attention.
The intense interest in the guidance to some extent drowned out recent reports that federal prosecutors may be contemplating a new, and traditionally more prosecution-friendly, prime venue for the filing of their anti-corruption actions. And if this comes to pass, companies facing potential FCPA charges will be well-advised to take a hard look at their current litigation plan.
The venue long-considered a welcome prosecutorial port is the Eastern District of Virginia (EDVA). Experienced prosecutor and EDVA U.S. Attorney Neil MacBride, speaking at an American Bar Association event in October, publicly highlighted the particular advantages of the EDVA’s legendary “rocket docket” for the prosecution of Foreign Corrupt Practices Act (FCPA) cases. The key advantages to FCPA prosecutors will be:
- Tight trial deadlines with few continuance
- No-nonsense judges
- Tough-on crime, prosecution-friendly juries
If the district’s top prosecutor gets his way, the EDVA will join D.C. and Houston as the current districts of choice for the filing of FCPA cases.
From the perspective of the outside counsel selection process, FCPA charges brought in the EDVA will place a premium on counsel with demonstrated records of actual trial experience in complex criminal cases. Former federal prosecutors with deep trial backgrounds and subject-matter experience, in turn, will likely see increased demands for their expertise. Such counsel will be in the best position to help clients effectively navigate through the country’s fastest federal trial docket. Experienced and trial-ready counsel also stand a better chance to be taken seriously by the courts and prosecutors who have a knack for quickly assessing whether defense counsel have what it takes to defend complex corruption cases under the strictures of a highly-compressed motion and trial schedule.
The EDVA, after all, is not the best place to learn the nuances of trial practice, and an anti-corruption case of global scope is certainly not the kind of case through which to learn the finer points of federal prosecution and defense. The possibility that the government may add the EDVA as a new venue for FCPA cases is a development companies ignore at their own peril.