U.S. Department of Justice and Securities and Exchange Commission Release FCPA Guidance Manual

November 14th, 2012

flickr / John Linwood

Today, the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) released long-awaited guidance [PDF] on Foreign Corrupt Practices Act (FCPA) enforcement. The FCPA prohibits U.S. multinationals from bribing foreign officials in almost all cases. It is considered the keystone anti-bribery law in the world, and has been vigorously enforced over the past decade by the U.S. Department of Justice, after a spotty record of enforcement since its 1977 passage.

The guidance, which is really a handbook for anyone concerned about FCPA compliance, lays out detailed criteria of what DOJ is looking for companies to do and not do. The full document can be downloaded here. Joe Palazzolo at the Wall Street Journal summarizes the document:

But let’s cut to the chase. Broadly, the guidance recites positions long held by the government and avoids the firm policy pronouncements sought by the U.S. Chamber of Commerce and other critics of the law.

You’ll find some meat in the “gifts, travel and entertainment” section (page 15). There, the agencies suggest –note: they do not promise — that paying for a foreign official’s cab fare or buying him or her a cup of coffee wouldn’t alone trigger an FCPA investigation.

Of course, we already knew that. DOJ isn’t interested in prosecuting companies who buy a foreign official a cup of coffee while having a routine meeting with a foreign official. But at least now that is officially written down, so anti-FCPA groups will not be able to use it as an excuse to oppose the law. The purpose of the FCPA is to prevent U.S. companies from going out and using public bribes as a competitive advantage in doing business abroad, instead of following the rules and selling a better product than their competition. This was always the case, but the guidance makes it more clear.

A coalition of civil society groups, including Task Force members Global Financial Integrity and Global Witness, released a statement today welcoming the guidance:

The organizations are particularly pleased with the DOJ and SEC’s inclusive, consultative process for drafting the guidance.  They held extensive meetings with interested organizations and investors, as well as major companies and industry groups, to discuss their concerns and expectations.  According to Sarah Pray, Senior Policy Analyst at the Open Society Foundations, “The guidance seems like a fair balance between business’s desire for clarity and civil society’s concern that the government avoid hamstringing its own ability to prosecute an offense as complex as international bribery.”

Recent high-profile corruption cases have brought to the forefront the importance of maintaining a robust FCPA. “Bribery takes many forms but is encouraged by a corporate culture of willful ignorance,” said Stefanie Ostfeld, Policy Advisor with Global Witness. “Details have been revealed about how Wal-Mart’s executives allegedly tried to insulate its top management from its subsidiaries’ daily decisions, which allowed it to consolidate its market share through corrupt payments in Mexico and elsewhere.”

Hopefully, this will address the concerns of the FCPA’s industry opponents, and they will stop trying to introduce legislation that would gut the law. I’m not holding my breath, though. We’ll keep you updating as the picture surrounding the guidance becomes more clear.

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Written by EJ Fagan

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