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The Updated FCPA Resource Guide
In July of this year, the Department of Justice and the SEC released their first comprehensive update to the original FCPA Resource Guide published in 2012 (the "original guide"). Much of the new version (the "Resource Guide" or the "Guide") is the same as the old one and many of the new sections essentially borrow from other DOJ and SEC guidances and pronouncements that have been issued since 2012. But this second edition also contains some new "hypotheticals" — facts of actual cases the DOJ finds important enough to focus on — and, in keeping true to its name, has included additional resources and links for chief compliance officers looking to design and audit their companies' anticorruption compliance programs. And for those of you who think that in the age of COVID, FCPA enforcement is dead, having been replaced by investigations of companies fraudulently touting cures and vaccines, one only has to look so far as public company SEC filings and the DOJ's website announcing large FCPA settlements to know this is no time for companies to relax their vigilance.
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.
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