Foreign Corrupt Practices Act guidance on bribery

After much anticipation, the Criminal Division of the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) released guidance to their enforcement of the Foreign Corrupt Practices Act (FCPA). (This resource can be viewed by clicking this link – FCPA Guidance.) This should clarify for white collar criminal attorneys in advising what companies cannot do when dealing with foreign officials and providing them things of value in exchange for overseas work and makes more clear what is considered a bribe.

In issuing this guidance, the DOJ and SEC noted:

“When business is won or lost based on how much a company is willing to pay in bribes rather than on the quality of its products and services, law-abiding companies are placed at a com¬petitive disadvantage—and consumers lose. For these and other reasons, enforcing the FCPA is a continuing priority at the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC).”

General Counsel and bribery defense attorneys across the country have been anxiously awaiting this release for over a year and a since the Department of Justice announced they were working to clarify their position. This Guide is an attempt by the DOJ and SEC to be more business friendly, and to clearly set forth their position on the enforcement of the FCPA. A review of the Guide advises company attorneys what the DOJ and SEC see as criminal bribery activity they seek to prosecute if uncovered. This guide should be considered a “must read” by any corporation, particularly those doing business across international borders.

Traditionally, attorneys specializing in bribery cases have and company general counsel have been forced to guess what the DOJ and SEC’s position would be on various activity, often too scared to request a formal opinion for fear of prosecution. Now, this guide answers many of the more common questions.

Questions most often raised and now addressed in the guide include:

1. Who is a foreign official?
2. What does “Corruptly” mean as used in the FCPA?
3. What does “Willfully” mean as used in the FCPA?
4. What does “Anything of value” mean as used in the FCPA?

Additionally, the guide discusses affirmative defenses to providing things of value to a foreign official such as “The ‘local law’ defense” and “Reasonable and bona fide expenditures.”

This guide should be a starting point to attempt to determine what type of activity will land a company in hot water, at least under this administration. This FCPA guide is the only comprehensive document providing insight from the FCPA’s enforcement authorities, and while probably not enforceable should certainly be taken seriously.

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