DOJ and SEC Issue Revised FCPA Guidance (Part I of V)

In the dead of night, July 2, 2020, DOJ and the SEC issued the Second Edition of its FCPA Guidance (Here)

A comparison of the First and Second Editions was released by Dick Cassin at The FCPA Blog, and is set forth here.

Given the importance of the revised FCPA Guidance, we have scheduled a webinar for Tuesday, July 14, 2020 at 12 noon EST.  The Sign Up for the Webinar is Here.

The original FCPA Guidance was issued in November 2012, and was a very influential document.  In the original FCPA Guidance, the six pages under the subheading, Hallmarks of an Effective Compliance Program, was perhaps the most important outline of compliance program best practices.  Starting in late 2012 and continuing until further DOJ Guidance in 2018, the FCPA Guidance on compliance programs was an important force multiplier to company efforts to enhance their compliance programs. 

To review the new guidance, I am posting a five-part series this week.

The Second Edition of the FCPA Guidance makes a number of important revisions.  Much of the Guidance remains the same and it continues, in my opinion, to be the most informative and resourceful guide on FCPA compliance and enforcement.  It was – and still is – an extraordinary document released by federal prosecutors outlining their approach to enforcement and interpretation of the FCPA.

The revisions reflect eight years of “new cases, new law, and new policies.”  The Second Edition has been updated to include new case law on the definition of the term “foreign official” under the FCPA, the jurisdictional reach of the FCPA, and the FCPA’s foreign written laws affirmative defense. 

The FCPA Guidance also is updated to include the mens rea requirement and statute of limitations for criminal violations of the accounting provisions. 

It includes updates of applicable DOJ and SEC policies, including the DOJ’s FCPA Corporate Enforcement Policy, Selection of Monitors in Criminal Division Matters, Coordination of Corporate Resolution Penalties (Anti-Piling On Policy), and the Criminal Division’s Evaluation of Corporate Compliance Programs.

The Revised FCPA Guidance includes ten important discussions relating to: (1) the business purpose test (pp. 11-12); (2) the definition of “corruptly” (p. 13); (3) Gifts (pp. 15-16); (4) “foreign official definition (pp. 20-21); (5) payments to third parties (pp. 22-23); (6) the local law defense (p. 24); (7) successor liability (pp. 29-32); (8) importance of internal accounting controls and criminal liability for accounting violations (pp. 40-41, 45-46); (9) evaluation of compliance program (pp. 56-57); and (10) lessons learned from internal investigations (pp. 66-68).

The Revised FCPA Guidance, in combination with recent changes issued by DOJ to the Evaluation of Corporate Compliance Programs, provides a robust set of new expectations and clarifications that every company should review.

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