U.S. Chamber Asks DOJ and SEC for Clear Guidance on FCPA Compliance

Brian Glaser

Corporate Counsel

02-23-2012

In the wake of this week’s terminal tumult over the U.S. government’s pursuit of Foreign Corrupt Practice Act (FCPA) cases, the U.S. Chamber of Commerce Institute for Legal Reform (ILR) sent a letter [PDF] to the Department of Justice and Securities and Exchange Commission, making suggestions for forthcoming guidance on corporate compliance with the controversial anti-bribery law.

In a statement that accompanied the release of the letter, ILR president Lisa Rickard said that the dispatch “details many areas of ambiguity that we ask the administration to address through a meaningful and efficient process.”

The letter appears under the banner of the ILR, but it is being put forward as a collaboration with a broad slice of the U.S. business community. More than 30 trade associations and business groups co-signed the letter, including the American Gaming Association, California Manufacturing and Technology Association, Financial Services Roundtable, National Association of Criminal Defense Lawyers, Retail Industry Leaders Association, and Western Independent Refiners Association.

According to a Reuters report, “The letter comes days after two Democratic senators urged the U.S. Justice Department to provide information about how it enforces the law to offer more ‘predictability’ to companies subject to it.” Late last year, DOJ criminal division head Lanny Breuer promised “detailed new guidance” on the FCPA in the near future. Senators Amy Klobuchar (D-Minn.) and Chris Coons (D-Del.) requested action on that promise in a letter they sent to U.S. Attorney General Eric Holder earlier this month.

Addressing Breuer and Robert Khuzami, the director of enforcement at the SEC, the ILR letter asks for several basic clarifications of the anti-corruption law, including specific definitions of some of the FCPA’s fundamental terms: “Your agencies have interpreted the terms ‘foreign official’ and ‘instrumentality’ broadly but, as yet, have not provided a clear, uniform definition to which companies may conform their conduct.”

The 11-page document also asks that the forthcoming guidance spell out what, if any, consideration will be given “to potential defendant companies’ strong, pre-existing compliance programs when making enforcement decisions.”

The letter concludes by saying, “As you know, we believe that modest legislative revisions and clarifications of the FCPA remain the best option for providing the certainty needed by the regulated community. Nevertheless, the formal guidance that we understand you will provide in 2012 should carry sufficient precedential weight to be reliable and meaningful for businesses seeking to comply with the FCPA.”

The missive comes hard on the heels of several major stumbles for DOJ cases brought under the FCPA, including Tuesday’s dismissal of the government’s largest FCPA case. (See “Should DOJ Setbacks Encourage Future FCPA Defendants?” in our sibling publication, The AmLaw Litigation Daily.)

Speaking for the ILR, Rickard sounds an optimistic note that her group’s correspondence with the DOJ and SEC will yield results that make it easier for U.S. businesses to comply with the FCPA. “The DOJ’s forthcoming guidance is an important first step towards providing a foundation for lasting legislative improvements to the statute,” she says, “and we are hopeful that DOJ accepts these recommendations.”

See also: “The Benefits of an FCPA 'Compliance Defense,' ” CorpCounsel, January 2012.