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Thoughts on the Proposed FCPA Guidance
This year may mark the beginning of a new, more predictable era in the world of FCPA compliance and enforcement. In November 2011, Assistant Attorney General (AAG) Lanny Breuer announced that the Department of Justice (DOJ) would release “detailed guidance” on the FCPA's criminal and civil enforcement provisions before the end of 2012. See www.justice.gov/criminal/pr/speeches/2011/crm-speech-111108.html. Such guidance has been regularly requested by the legal and business communities. In fact, the FCPA statute itself contemplated that the DOJ would provide this sort of guidance as long ago as 1989. Section 78dd-a(d) of Title 15 states that the Attorney General “shall determine to what extent compliance with [the FCPA] would be enhanced and the business community would be assisted by further clarification [and] may issue guidelines describing specific types of conduct, associated with common types of ' business contracts, which ' would be in conformance with the [FCPA].”
In the 35 years since the FCPA was enacted, the DOJ has provided guidance in the form of Opinion Procedure Releases. But these are specifically limited to the particular facts presented and have limited value for anyone other than the requestor.
Since the AAG's November announcement, the DOJ has received communications from various stakeholders, outlining requests for specific guidance. In a Feb. 15, 2012, letter to Attorney General Holder, Sens. Amy Kobuchar (D-MN) and Chris Coons (D-DE) urged the DOJ to “provide clarity and predictability to companies subject to” the FCPA. The senators noted that “too many companies are devoting a disproportionate amount of resources to FCPA compliance and internal investigations,” and noted that effective guidance would allow those companies to more efficiently comply with the FCPA, while not decreasing the government's ability to enforce the law.
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