Summer has come to a close without the promised beach reading from the U.S. Department of Justice and Securities and Exchange Commission: updated guidance on the U.S. Foreign Corrupt Practices Act. Corporate counsel seeking detailed anticorruption rules are left with the compliance guidance set forth in (1) the federal sentencing guidelines, (2) the Organization for Economic Cooperation and Development guidance, (3) the UK Bribery Act adequate procedures guidance, and (4) remedial compliance language in FCPA deferred and non-prosecution agreements.
The FCPA requires issuers to maintain adequate books and records and makes it unlawful to offer, promise, or pay anything of value to a foreign government official (including employees of state-controlled organizations) in order to obtain an improper business advantage. It does not outline the key elements of policies addressing petty cash, travel for non-company personnel, gifts, entertainment, or other topics that are the focus of any robust anticorruption compliance program. Nor do the sentencing guidelines, OECD guidance, or any of the other government sources. Without the long-promised revised guidance, corporate counsel often struggle with nuanced questions, such as the proper amount that an employee may spend at dinner with a government official as part of a bona fide business expense or the proper stance on facilitation payments.
