On Nov. 14, 2012, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) jointly issued A Resource Guide to the U.S. Foreign Corrupt Practices Act (the “Guide”), available at http://www.justice.gov/iso/opa/resources/29520121114101438198031.pdf. The 120-page Guide provides a detailed analysis of the FCPA from the perspective of the government agencies charged with enforcing it. The Guide was issued after complaints byU.S. business interests about certain gray areas in the statute, and an OECD recommendation to increase the transparency and consistency of enforcement under the FCPA. For the most part, the Guide recites legal interpretations previously advocated by the DOJ and SEC, although in a far more comprehensive manner. But it also contains some important new insights into how the DOJ and SEC apply and enforce what has become a critical feature of the regulatory landscape over the last decade. Additionally, the Guide includes detailed hypotheticals, scattered throughout the chapters, covering a host of important issues, such as: (1) the reach of FCPA jurisdiction; (2) the propriety of gifts, travel and entertainment (“GTE”) expenses; (3) the use of so-called facilitating or “grease” payments; (4) successor liability involving acquired companies that were or were not previously subject to the FCPA and (5) vetting of agents and other third-party intermediaries via risk-based due diligence.
As summarized in the Guide, the anti-bribery provisions of the FCPA prohibit “offering to pay, paying, promising to pay, or authorizing the payment of money or anything of value to a foreign official in order to influence any act or decision of the foreign official in his or her official capacity or to secure any other improper advantage in order to obtain or retain business.”
Click here for an overview of the Guide, including guidelines for an effective corporate compliance program.