The U.S. .Securities and Exchange Commission (“SEC”) and U.S. Department of Justice (“DOJ”) issued a long-delayed Foreign Corrupt Practices Act (“FCPA”) Resource Guide in November 2012. While the Guide was preceded by years of pressure to clarify the enforcement of the FCPA, it generally does little to break new ground as a matter of policy and is not legal precedent. The Guide functions best as a single-reference source of preexisting agency enforcement actions and opinion letters. In this regard, it is a useful resource for the long-held interpretations of the FCPA by the agencies tasked with enforcement and offers a single source for the ounce of prevention that may be worth a pound of cure. It is important that companies review the Guide to assess whether current compliance programs or measures will pass the watchful eye of the SEC or DOJ and for insight into how the agencies are likely to view future compliance issues and potential misconduct. With that in mind, one legal services firmed pulled together 12 important takeaways that can be drawn from the Guide. Read one per day or all at once.
The Seventh Day: ‘Twas the Night Before . . . and Other Hypotheticals
Takeaway number seven is that the Guide provides examples of how the government believes the FCPA applies (or not) to specific sets of facts. While we’ve referenced some particular hypotheticals, they’re also worth a word generally. While these hypotheticals are not legally binding, a party can reference them in future enforcement proceedings. Overall, the hypotheticals address a range of issues including liability for successor and parents, jurisdiction, gifts and other expenses, and facilitating payments. Some notable examples are Chapter Five’s compliance program case study and several situations addressing third-party vetting and joint ventures, as well as Chapter Two’s discussion of hypothetical gifts and travel payments.
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DOJ and SEC Resource Guide to the U.S. Foreign Corrupt Practices Act for more in-depth details on specific provisions.
12 Days of Christmas • to provide cultural background on why there are “12 Days of FCPA”