The Department of Justice (DOJ) and the Securities Exchange Commission (SEC) issued guidance last week for legal departments managing the complexities of the Foreign Corrupt Practices Act (FCPA), but not before hearing from in-house counsel.
In May, 19 inside counsel and officials from the DOJ and SEC met to discuss what in-house counsel need in the guidelines. The Association of Corporate Counsel (ACC) organized that meeting. Some of the questions raised included whether taking foreign officials out for drinks or making small payments to foreign officials constituted a violation of the FCPA.
Although when writing the guidance, the DOJ and SEC recrafted some of the scenarios raised in the meeting, for the most part, the lawyers’ concerns were reflected in the guidelines, Amar Sarwal, chief legal strategist for the ACC, told Thomson Reuters.
Sarwal lauded the government in creating the guidance and incorporating the concerns of in-house counsel. “The hardest thing for in-house counsel is to follow case-by-case prosecutions and figure out and divine what the rules may be. It’s a lot easier when the guidance is made proactive,” Sarwal said.
Although the new guidelines are a step in the right direction and the ACC is thankful for the opportunity to participate in their creation, Sawal said there isn’t a lot of new material, and the new guidance isn’t binding. “That is a source of frustration,” he added.
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