This article was reprinted with permission
from FCPA Professor
This post provides a roundup of commentary (law firm,
individuals, and civil society organizations) relating to this week's
FCPA guidance issued by the DOJ and SEC. See here
for my previous statement.
As detailed below, the consensus among those who have
publicly stated a position on the guidance appears to be that the guidance
offers little in terms of actual new substance and that FCPA reform
issues remain. It appears that the only contrary publicly stated
position is a press release from a variety of civil society
organizations.
Debevoise &
Plimpton
"[T]he Guidance is an important and valuable resource for
companies and their legal and compliance advisors in developing effective
compliance programs and preventing violations of the FCPA. However, as a
non-binding compilation of the views of the U.S. enforcement agencies, the Guidance
leaves tremendous latitude for prosecutorial discretion in enforcement
decisions and is no substitute for greater clarity in the statutory language of
the FCPA. We expect that the perspectives offered by the DOJ and the SEC, like
the FCPA itself, will now be subject to considerable debate and
interpretation."
Perkins
Coie
"The Guide collects DOJ's and SEC's prior opinions and
releases and provides helpful clarifications and hypothetical case studies for
corporate counsel. The Guide, however, is just that-a guide-and is not binding
on courts or even the agencies themselves." [Among the authors of the
Perkins piece is Markus Funk, co-chair
of the ABA Global Anti-Corruption Task Force who previously formally
presented a proposed Resolution, supported by the current and incoming Chairs
of the ABA Criminal Justice Section, regarding FCPA reform (see here for the
prior post)].
Duane
Morris
"In large measure, DOJ and the SEC re-enforce previous
guidance regarding how they exercise their prosecutorial discretion. [...]
While the Guide helps clarify many issues regarding how DOJ and the SEC
exercise their prosecutorial discretion, the Guide does not necessarily make
FCPA compliance any easier."
Bingham
"Ultimately, the guidance appears valuable primarily as a
convenient and practical compilation of previously available reports,
prosecution guidelines, policy manuals, agency opinions, and judicial
decisions. It remains to be seen whether a push for legislative reform of the
FCPA will continue in the next Congress."
Foley
Hoag
"Although much of the guidance walks through established
DOJ and SEC positions and practices, the Guide does, through the use of
real-world examples and detailed hypotheticals, provide more concrete direction
than was previously available."
Ropes
& Gray
"The Resource Guide does not represent a shift in the
government's FCPA policy so much as it gives unprecedented insight into where
the government is likely to focus its expanding enforcement efforts in the
coming years."
BakerHostetler
"Such guidance from the government is always welcome. It
sharpens the enforcement focus and is a strong indicator of enforcement trends.
While the Guide is unprecedented in both its length and detail, it does not
provide clear-cut answers to many of the questions regarding the FCPA."
Manatt,
Phelps & Phillip
"The most useful thing about the Guide may be that it
collects the thinking of the agencies, along with descriptions of their past
practices, in one place. It does offer some specific guidance in a few of
the areas that have been of concern to companies and their counsel and provides
some helpful descriptions of hypothetical situations that would, would not, or
might constitute violations of the FCPA, but it also leaves the status quo
intact in many ways."
Chamber
of Commerce
"While guidance by definition can never provide the same
certainty as an affirmative statute, we're hopeful that this document will help
companies seeking to comply with the law in good faith and prosecutors charged
with enforcing it. The business community will continue to engage with
the DOJ and the SEC as they enforce the statute consistent with today's
guidance."
Civil
Society Organization's Press Release
[Global Witness, Global Financial Integrity, Open Society
Foundation, International Compliance Accountability Roundtable, Earthrights
International]
"Civil society groups contend that the new Guidance
renders moot calls from the U.S. Chamber of Commerce's Institute for
Legal Reform, for broad amendments to the FCPA that would weaken key
anti-bribery applications. "The Guidance thoroughly addresses
aspects of the law that the U.S. Chamber has described as vague and
difficult to translate into everyday business practice," said Heather
Lowe, Legal Counsel & Director of Government Affairs at Global
Financial Integrity. "In light of the content of the Guidance, we
can't see any basis for the Chamber's attacks on the FCPA to continue."
Jan
Hanzlik (Venable- defense counsel in the DOJ's recent failed prosecution of
Lindsey Manufacturing and its executives)
"The new Guidance amounts to much sound and fury,
signifying very little. Instead of responding to widespread concerns
about the Act's lack of clarity, the Guidance for the most part simply
reiterates positions taken by the DOJ and SEC in past enforcement
actions. DOJ now cites as settled law its own interpretations of the Act
and the "principles" developed over the years through deferred prosecution
agreements. If the objective was to pull together the principles of
prosecution and enforcement proceedings in one place, the Guidance
succeeds. But it's doubtful US companies and individuals trying to
understand the consequences of their actions when doing business abroad will
find much real guidance here."
Rita
Glavin (Seward & Kissel - former Assistant Attorney General DOJ) in
a Law360
article.
"This is going to be the definitive resource on the FCPA,
but there's nothing in here that's a surprise."
Peter
Henning (Professor, Wayne State University Law School and author of the
White Collar Crime Watch on the New York Times)
"Now that the resource guide has arrived - providing only
limited insight into what constitutes a violation or what might be a mitigating
defense - I expect to see a reinvigorated effort to change the statute and
provide brighter lines for companies doing business abroad."
Ryan
McConnell (Baker & McKenzie - former DOJ prosecutor) in a Corporate
Counsel article.
"The intended audience appears to be experienced
FCPA practitioners (not a lay person), but the guidance omits much of the
practical advice sought by readers to address FCPA compliance risk. Few
companies that have given any consideration to the FCPA are struggling
with such issues as whether a $10,000 dinner or a trip to Paris for a
government official and spouse are appropriate under the FCPA, as addressed in
the new guidance. What about having a government official attend the 2014 World
Cup? The UK Bribery Act guidance squarely addresses this issue in just a third
of the pages. As noted by the WSJ, a close review of a few of the
footnotes raises questions about the reliance on enforcement actions to
establish FCPA guidance. For instance, the guidance notes that, "the FCPA
covers corrupt payments to low-ranking employees and high-level officials
alike." Some practitioners believe that this issue is still awaiting resolution
by the U.S. Court of Appeals for the Eleventh Circuit (U.S. v. Esquenazi),
which is currently considering whether payments made to employees of the
Haitian state-owned telecom qualify as payments to "foreign officials." The
guidance also relies on non-pattern jury instructions that "a number of courts
have approved" and, in one instance, on the DOJ's own opposition motion. The
guidance says that these sources are authoritative because the decisions "are
consistent with the acceptance by district courts around the country of over 35
guilty pleas by individuals." Notably missing from the DOJ's collection of
sources are cases where the DOJ's FCPA enforcement efforts have fallen flat."
Steven
Tyrrell (Weil, Gotshal, former chief of the DOJ fraud section) in a Wall
Street Journal article. The guidance "does little to fill in the
gray areas" and it is "more of a scrapbook of past DOJ and SEC successes than a
guide book for companies who care about playing by the rules."
Erich Schwartz (Skadden,
former Assistant Director SEC Division of Enforcement) in a Compliance
Week article.
"This voluminous Resource Guide is clearly a substantial
effort to organize the government's thinking on a variety of issues that are
important in understanding how to comply with the FCPA. It is not, however, a
clear roadmap for compliance. The guide largely avoids announcing new
policy."
Paul Pelletier (Mintz
Levin - former Principal Deputy Chief in the DOJ's Fraud Section) in a Corporate
Counsel article.
"There's nothing Earth-shattering here, but it's a great
one-stop shopping manual for both practitioners and compliance officers."
In addition, see here
from Wall Street Journal (Corruption Currents) (a collection of views) and
here from
Trustlaw (a collection of views)
Read more articles on the FCPA by Mike
Koehler at FCPA
Professor.
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