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The New FCPA Cooperation Plan
On April 5, 2016, the U.S. Department of Justice (DOJ) issued an Enforcement and Guidance Plan (Plan) concerning the Foreign Corrupt Practices Act (FCPA). While the new Plan could be interpreted as a novel departure from past precedent, careful analysis reveals that it does little to alter or clarify how the DOJ will review cases or reward companies for significant cooperation in addressing anti-corruption global issues.
Background on the FCPA and Previous Agency Interpretations
Administered jointly by the DOJ and the U.S. Securities and Exchange Commission (SEC), the FCPA has two primary components: anti-bribery provisions and accounting requirements. The FCPA makes it unlawful for companies and individuals to make payments of any item of value to foreign officials in exchange for influence or business opportunities; it also requires foreign companies with U.S.-listed securities to follow all applicable accounting provisions. However, payments merely facilitating or expediting the performance of a “routine” governmental action represent a crucial but poorly defined exception. Individuals who violate the FCPA are also subject to a fine up to $2 million and up to five years in prison. However, in practice, the DOJ and SEC have brought relatively few FCPA actions against individuals.
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