On July 3, 2020, the Department of Justice ("DOJ") and the Securities Exchange Commission ("SEC") released the second edition of A Resource Guide to the U.S. Foreign Corrupt Practices Act ("Guide" or "FCPA Resource Guide") marking the first update to the Guide since its release in 2012.
What is the FCPA?
The Foreign Corrupt Practices Act of 1977 ("FCPA") (15 U.S.C. § 78dd-1, et seq.) is the leading federal anti-bribery law in the United States. It contains two separate and distinct but complimentary provisions: (1) anti-bribery provisions and (2) accounting provisions.
The anti-bribery provisions prohibit U.S. individuals and entities from offering or paying bribes to foreign government officials in order to obtain or retain business. This provision also applies to anyone who commits an act in furtherance of a violation while in the United States.
The accounting provisions were designed to detect bribery and corrupt payments by requiring transparency around corporate accounting practices as well as ensuring accuracy in financial records. Corporations covered by these provisions are required to (a) make and keep books and records that accurately and fairly reflect the transactions of the corporation and (b) devise and maintain an adequate system of internal accounting controls.
Why was the FCPA enacted?
Corruption includes any illegitimate use of office. It has devastating social, political, economic, and environmental impacts, especially in developing countries and emerging economies, and poses significant legal and economic risks for corporations doing business around the world. Although legal definitions vary, bribery generally refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of another. Bribery is a form of corruption and is a crime in every country. Both bribery and corruption have corrosive effects at the corporate and government level and also distort national and international economic relations.
The Watergate scandal of the early 1970s, followed by SEC investigations revealing that hundreds of U.S. companies made illegal political contributions and foreign payments, raised concerns that corporate books and records were not being accurately reported in SEC filings. However, and perhaps more importantly, there was concern about the negative effect foreign bribery had on the image of the United States and on its foreign policy regime. As a result, it was concluded that there was a strong need for anti-bribery legislation in the United States. Therefore, in 1977, President Jimmy Carter enacted the FCPA, criminalizing the payment of bribes in foreign jurisdictions. The significant breadth and scope of the FCPA's extraterritorial reach made it the first law of its kind. Although there was little enforcement of the FCPA at its inception, the statute is widely and aggressively enforced today.
Who enforces the FCPA?
The FCPA is jointly enforced by the Department of Justice ("DOJ") and the Securities and Exchange Commission ("SEC"). Broadly speaking (and with limited exceptions), the DOJ has primary responsibility for the criminal enforcement of the FCPA's anti-bribery provisions and the SEC has primary responsibility for civil enforcement of the FCPA's accounting provisions.
What is the FCPA Resource Guide?
The FCPA Resource Guide, which was first published in 2012, is a collaboration between the DOJ and the SEC. Geared toward companies, practitioners, and the public, it is a comprehensive compilation of information about the statutory requirements of the FCPA as well as insight into DOJ and SEC enforcement practices. As is mentioned in the Forward to the Guide, the document "represents one of the most thorough compilations of information about any criminal statute, and remains relevant to this day." Much like its predecessor, the recently released second edition of the Guide is a 100-plus page document providing detailed analysis, commentary, hypotheticals, and guidance for businesses and individuals regarding compliance with the FCPA and guidance about its enforcement. The Guide is summary in nature and its contents does not include legal advice.
What new updates appear in the second edition of the FCPA Resource Guide?
As new FCPA cases were brought over the past eight years, new policies have developed and the law has evolved. The 2020 revisions to the Guide reflect these changes and updates. By and large, the structure and substance of the original 2012 FCPA Resource Guide is left unchanged. Rather, the 2020 revisions provide a refresh of the document and include the addition of updated case examples, the inclusion of policy announcements enacted since the 2012 Guide was published, and contain minor corrections and clarifications.
Updated Policies and Cases
More specifically, the 2020 Guide includes discussions of DOJ’s FCPA Corporate Enforcement Policy, Piling On Policy, Monitor Selection Criteria, and Evaluation of Corporate Compliance Programs, all of which were enacted in the past few years. The 2020 Guide also incorporates guiding analysis of several significant cases decided after the publication of the 2012 Guide.
Revisions and Clarifications
Additionally, the 2020 Guide contains revisions and clarifications related to certain aspects of the FCPA. For instance, the 2020 Guide clarifies that the applicable statute of limitations for criminal violations of the FCPA’s accounting provisions is six years, rather than the five years stated in the 2012 Guide. Furthermore, the 2020 Guide also clarifies that the mens rea required for criminal liability under the FCPA’s accounting provisions is knowingly and willfully.
Corporate Compliance Program Guidance
Regarding corporate compliance program guidance, the 2020 Guide maintains all ten of the hallmarks of an effective compliance program as laid out in the 2012 Guide, along with the addition of an eleventh hallmark, “Investigation, Analysis, and Remediation of Misconduct.” Otherwise, this section of the Guide underwent very few changes, reinforcing the continued relevance and focus on tailored and risk-based corporate compliance programs.
The release of the updated FCPA Resource Guide underscores the commitment of both the DOJ and the SEC to robust anti-corruption enforcement and clearly outlines prosecutorial and regulatory expectations. Therefore, corporations and practitioners would be well advised to familiarize themselves with the information contained in the Guide. In particular, the hypotheticals presented in the Guide provide helpful guidance on various fact-based situations, especially when it comes to high risk areas such as third-party payments. Additionally, the effective implementation of appropriately tailored and risk-based corporate compliance programs, designed in accordance with the eleven hallmarks spelled out in the Guide, will prove extremely beneficial to companies seeking to avoid costly violations.
Where can I find more information?
For more information about the FCPA Resource Guide, see the Department of Justice website here.
To access a PDF version of the FCPA Resource Guide, click here.