The Updated FCPA Resource Guide

As noted above, the Resource Guide incorporates guidances and the like that have been issued by the DOJ since 2012. Among them are the FCPA Corporate Enforcement Policy, the Criminal Division's Evaluation of Corporate Compliance Programs, and the updated Principles of Federal Prosecution of Business Organizations, all three of which put a premium on a company's compliance program. Some insight into DOJ's priorities can be gleaned from which sections of those prior pronouncements DOJ decided to include in the Guide and which it did not. For example, the Resource Guide specifically reiterates the possibility of receiving a declination from the DOJ when Company A acquires Company B, the latter with clear violations of the FCPA, because the acquirer, among other things, has its own robust compliance program in place and put it in place at Company B "as quickly as practicable." See, Resource Guide at 29, 31 and 50.

Similarly, the Guide reminds the reader that the DOJ, when considering whether to charge a company, will consider not just whether the company had a compliance program in place at the time of the violation but will also give credit to a company that may not have had one at the time of the violation but had one at the time of the charging decision and/or resolution.