If there’s one thing that everyone can agree upon about the Foreign Corrupt Practices Act (FCPA) guidance the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) released Nov. 14, 2012, it’s that the document was long-awaited by the businesses that regularly confront the law’s nuances and ambiguities and the lawyers who advise them.
Assistant Attorney General Lanny Breuer, head of the DOJ’s Criminal Division, set off the waiting game in November 2011, when he teased in a speech that “detailed new guidance” on criminal and civil FCPA enforcement was forthcoming in 2012. There was a flurry of reports in September that the guidance would be out the next month. In the end, it came out just more than a year after Breuer first mentioned it at the American Conference Institute’s 2011 National Conference on the Foreign Corrupt Practices Act.
The guide runs about 120 pages long with 418 endnotes. It presents a basic introduction to the FCPA and its central aims and principles: How are payments to third parties treated? (Answer: Paying bribes through third parties doesn’t eliminate potential liability.) What constitutes a “foreign official” under the law? (Answer: The DOJ and SEC take a broad view, even on the oft-debated definition of “instrumentalities.”) The guide outlines the FCPA’s anti-bribery and accounting provisions. It then moves on to discuss related U.S. laws; guiding DOJ and SEC principles of enforcement; penalties, sanctions and remedies; resolutions; whistleblower provisions and protections; and DOJ opinion procedure.