New Guidance on the Foreign Corrupt Practices Act

With the US’ Department of Justice and Securities and Exchange Commission having updated their guidance on the Foreign Corrupt Practices Act, financial crime specialists Rahman Ravelli outline the main points.

On July 3 2020, the US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released an update to their “Resource Guide to the US Foreign Corrupt Practices Act,” which was originally published in 2012.

Like its predecessor, the updated Guide provides detailed information about the FCPA, including how it has been interpreted by courts and how it has been enforced.  The new edition is of value as it provides information on key FCPA developments and relevant changes in DOJ/SEC policy over the past eight years.

In addition to an overview of the various enforcement actions brought in recent years, the updated Guide includes:

• A discussion of the 2017 DOJ Corporate Enforcement Policy, which modified the process by which companies get co-operation credit and provided guidance on when a monitor should be imposed as part of a corporate resolution.
• An overview of the DOJ Criminal Division’s Evaluation of Corporate Compliance Programmes, which set out the key criteria that will be used to assess the effectiveness of a company’s compliance programme.
• Updated guidance on the interpretation of FCPA statutory terms like “foreign official” and “agent,” in light of the Second Circuit’s decision in United States v. Hoskins that clarified the scope of the law’s reach.
• An explanation of disgorgement in SEC enforcement actions and the impact of the Supreme Court’s recent decision in SEC v. Liu.
• A reaffirmation of the principles that guide FCPA enforcement by the SEC and DOJ, including the factors these agencies use in evaluating whether to resolve an investigation by declination or otherwise.

The release of the new Guide serves as a reminder that FCPA enforcement remains an important priority for US law enforcement agencies. The scope of this law remains extremely broad. Companies and individuals that have any connection to the US will find this Guide helpful in understanding how the FCPA works and how it is enforced.

This article was also featured on Lexology.com.