Despite all the pent-up anticipation, few expected the Justice Department to pack many surprises into its long-awaited guidance on the Foreign Corrupt Practices Act. And sure enough, the DOJ and Securities & Exchange Commission’s cheat sheet, released on Wednesday, pretty much regurgitates positions the government has taken in litigation and policy statements all along, leaving the U.S. Chamber of Commerce to continue pressing for statutory reforms.
The 130-page guide doesn’t spell out affirmative defenses to FCPA charges, as industry groups would have liked. But it does at least offer something for lawyers and compliance officers: a fairly straightforward interpretation of the law from the agencies’ perspective. As our colleagues at The Blog of Legal Times report, the document clarifies how the DOJ and SEC define key terms like “foreign official” and “willful” violations for the purposes of FCPA enforcement. And it uses hypothetical examples to illustrate the kinds of gift-giving that wouldn’t be considered bribery under the 1977 law, along with conduct that would clearly land companies and executives in hot water.
The U.S. Chamber of Commerce released a relatively positive statement about the guide, though Lisa Rickard, head of the U.S. Chamber’s Institute for Legal Reform, cautioned that “guidance by definition can never provide the same certainty as an affirmative statute.”
FCPA Professor blogger Mike Koehler, meanwhile, complained that “non-binding enforcement agency guidance” does little to cure the need for structural reforms ,”such as a compliance defense and abolition of non-prosecution and deferred prosecution agreements.” And Erich Schwartz of Skadden, Arps, Slate, Meagher & Flom told The Wall Street Journal that the guide is not “a clear roadmap for compliance.” It’s also not binding on the government or, for that matter, defendants, as the guide explicitly states.
Former Litigator of the Week Jan Handzlik of Venable, whose aggressive, successful defense of FCPA claims against Keith Lindsey and Lindsey Manufacturing Co. created a huge black eye for prosecutors last year, told FCPA Blogger Richard Cassin that he found the new guidance “underwhelming.”
“Instead of responding to widespread concerns about the Act’s lack of clarity, the guidance for the most part simply reiterates positions taken by the DOJ and SEC in past enforcement actions,” Handzlik said.
Of course, the new guidance has won praise too. And after the long wait, at least it’s here.
