On July 3, 2020, the U.S. Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) published a new version of the document entitled “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (“Guide”).
The DOJ and SEC first released this publication in November 2012. The purpose of the Guide is to provide companies and practitioners acting in the area of compliance with detailed information about concepts and application of the Foreign Corrupt Practices Act (“FCPA”).
To this end, the Guide presents hypothetical cases and summaries of applicable case law, in addition to opinions issued by the DOJ .
The main topics addressed in the Guide include: (i) who and what is subject to the FCPA’s anti-bribery and accounting provisions; (ii) who is considered a foreign official; (iii) the jurisdictional reach of the FCPA; (iv) the legality or not of a particular payment; (v) application of successor liability to the buyer after merger and acquisition operations; (vi) the hallmarks of an effective corporate compliance program; and (vii) the different types of civil and criminal resolutions available in cases of violation of the FCPA.
The Guide also sets out the factors taken into account by DOJ and SEC when deciding to open investigations, bring charges and/or apply penalties to companies and individuals.
The Guide reinforces the well-known concept of voluntary self-disclosure, full cooperation with the authorities and appropriate remediation through the implementation of an effective compliance and ethics program, which are crucial factors to avoid enforcement of penalities or even reduce them substantially.
Finally, this second edition reflects current data, statistics and case examples.
The full version of the Guide is available on the DOJ’s website and can be accessed through the following link.