On November 14, 2012, the Department of Justice and the Securities & Exchange Commission issued a joint guidance document on the 1977 Foreign Corrupt Practices Act. Some 35-years after passage of the FCPA, how can there be anything left to say about this statute?
Turns out there are 130-pages worth of things that the DOJ and SEC thought should be said about the FCPA on everything from the definition of “willfully” to the “local law defense.” And, as with any guidance document issued, it is an immediate must-read for those who might find themselves on the receiving end of an inquiry or investigation into their international activities.
Titled “A Resource Guide to the U.S. Foreign Corrupt Practices Act,” the guidance document includes discussion of other, related statutes, including the Travel Act, money laundering, mail and wire fraud, certification and reporting violations, and tax violations. Indeed, guidance documents such as this one are often an excellent resource for cross-references into other statutes and guidance documents, and it is well worth reading the footnotes and pulling any referenced guidance documents not already in a 3-ring binder within arm’s reach of your desk.
Indeed, publication of this FCPA guidance document should sound the alarm that these government agencies are continuing to find violations in all covered subject areas. A guidance document should be viewed as a last call to company compliance officers to conduct an internal audit and bring in an independent auditor, particularly considering the section titled “Hallmarks of Effective Compliance Programs.” A 35-year old statute plus a new guidance document is a sure sign that the DOJ and SEC are going to make defense arguments even more difficult.
Here at Orchid Advisors, we, too, offer guidance to our clients on specific applications of the FCPA and other compliance requirements about client business activities, situations they encounter, and circumstances into which they may be heading. Our principal, Jon Rydberg is an international executive with subject matter expertise in industries regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. As a former COO and CAE, Jon has engaged in multiple DOJ, SEC, and FBI investigations.