FCPA Guidance to be Released by Department of Justice

Guest Post by David Quinones, Executive Director, International Association for Asset Recovery

While it was just a brief comment during a lengthy speech, United States Assistant Attorney General Lanny Breuer’s mention of impending guidance on the resurgent Foreign Corrupt Practices Act (FCPA) from the Justice Department

Amendments made to the 1977 Act in 1988 said that consultations between regulators, department heads and legislators should be held to devise guidance and ensure “the business community would be assisted by further clarification.” But the clarification never came. Starting in 2009, FCPA enforcement increased in size and scope, and businesses snared in controversy over what had been business-as-usual chirped that the goal posts had moved.

Enter Breuer’s comments Tuesday, delivered at the National Conference on the Foreign Corrupt Practices Act in Washington, DC.

“[I]n 2012, in what I hope will be a useful and transparent aid, we expect to release detailed new guidance on the Act’s criminal and civil enforcement provisions,” Breuer said. It was brief allusion, but one that got people talking right away.

“If nothing else, Breuer’s statement appears to represent a welcome attitudinal shift at the DOJ and hopefully adoption of an approach more like the United Kingdom Serious Fraud Office of active engagement on compliance as opposed to just enforcement,” said noted FCPA expert Mike Koehler on his blog, FCPA Professor. “While a welcome development, DOJ’s promise of FCPA guidance in 2012 will not cure many of the issues that are being debated in good faith during this new era of FCPA enforcement.  I expect DOJ’s guidance to be little more than a compilation in one document of information that is already in the public domain for those who know where to look.”

The US Chamber of Commerce has been an outspoken critic of the increased enforcement, claiming it weakens corporations’ ability to compete overseas in markets where corruption is endemic. But while DOJ says it is aware of business interests, it isn’t about to condone corruption to appease corporations.

“We have no intention whatsoever of supporting reforms whose aim is to weaken the FCPA, and make it a less effective tool for fighting foreign bribery,” Breuer said.

Breuer touched on one of the most significant impediments in the eradication of corruption – getting support in foreign courts. While the FCPA has enough power to bring corporate targets to US courts to answer for their transgressions, there has been little will in the participating countries to prosecute these offenders.

The Department of Justice is currently prosecuting its fourth FCPA case of the year – a record for enforcement. It’s worth noting that Breuer, in outlining the department’s strategy of battling corruption, said the final principal in doing this was identifying and repatriating the proceeds of foreign official corruption.

Breuer offered no further comment on the coming guidelines, and a DOJ spokeswoman had no comment.

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