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FCPA Guidance: Asking DOJ for the Impossible?

The Justice Department has promised to issue guidance on the meaning of the FCPA and the application of the law to infinite permutations in the real world.  As I try to remind everyone, there is little chance that such guidance will resolve many of the more nettlesome issues facing companies, Audit Committees, compliance officers, general counsels and other professionals.

The most important point may be the most obvious — the Justice Department is an enforcement agency.  It is not a regulatory agency.  It has no obligation to provide direction, regulations or other specific rules to guide companies.  Regulatory agencies have more responsibilities and expertise in this area.

Asking the Justice Department to provide meaningful guidance is asking too much — the Justice Department provides guidance by its enforcement policies and specific actions.  That is not a way to regulate an industry or conduct relating to the broadly construed FCPA. 

There are statutes which have imposed detailed obligations on the Justice Department — e.g. The Voting Rights Act, The Tunney Act.  These statutes, however, usually reflect the Justice Department’s extraordinary expertise in a particular area which has been earned through a unique enforcement role — voting rights discrimination and denial of access or antitrust merger reviews.  The Justice Department  does not have the same history or expertise in the anti-bribery area.

It is difficult for companies to rely with any certainty on safe harbors when they are gleaning minimum compliance requirements from FCPA settlements filed in court with supporting documentation.  What may be good in one settlement may not be good when adopted by another company in another industry.

A regulatory agency can provide general principles and more specific guidance on anti-corruption compliance.  This fundamental distinction is an inherent function of such a broad prohibition in the FCPA which reads more like a regulatory statute than a criminal statute.  

As the Justice Department staff drafts the proposed guidance, it faces a very difficult task.  Congress, the White House, the business community, anti-corruption interest groups, and the international community all will be watching.   The Justice Department is committed to fairness and has numerous dedicated professionals who care about the public interest.  But given all of the interested parties, the inherent limitations of an enforcement agency, it looks like the public is asking too much from the Justice Department.

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