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An Interesting Corollary

Last week’s guest post (here [1]) about the 1988 amendments to the Foreign Corrupt Practices Act and the DOJ’s decision not to issue compliance guidance provides an interesting corollary to private rights of action under the FCPA.

How so?

Around the same general time frame as the 1988 FCPA amendments, several courts addressed the issue of whether the FCPA contained an implied private right of action.

The answer was no.

Guess what was a key factor in the courts’ reasoning?

The guidance that Congress envisioned the Attorney General would issue.

The leading FCPA private right of action case is Lamb v. Phillip Morris Inc., 915 F.2d 1024 (6th Cir. 1990).

Here is what the court had to say:

“Recognition of the plaintiffs’ proposed private right of action, in our view, would directly contravene the carefully tailored FCPA scheme presently in place. Congress recently expanded the Attorney General’s responsibilities to include facilitating compliance with the FCPA. See 15 U.S.C. §§ 78dd-1(e), 78dd-2(f). Specifically, the Attorney General must ‘establish a procedure to provide responses to specific inquiries’ by issuers of securities and other domestic concerns regarding ‘conformance of their conduct with the Department of Justice’s [FCPA] enforcement policy….’ 15 U.S.C. §§ 78dd-1(e)(1), 78dd-2(f)(1). Moreover, the Attorney General must furnish ‘timely guidance concerning the Department of Justice’s [FCPA] enforcement policy … to potential exporters and small businesses that are unable to obtain specialized counsel on issues pertaining to [FCPA] provisions.’ 15 U.S.C. §§ 78dd-1(e)(4), 78dd-2(f)(4). Because this legislative action clearly evinces a preference for compliance in lieu of prosecution, the introduction of private plaintiffs interested solely in post-violation enforcement, rather than pre-violation compliance, most assuredly would hinder congressional efforts to protect companies and their employees concerned about FCPA liability.”

Given that the expected Attorney General guidance was a key factor in the court’s reasoning that the FCPA does not contain a implied private right of action, how would a court address this issue today given that the Attorney General never issued the guidance?

Also, what about the snippet from the Sixth Circuit’s opinion – that the 1988 amendments “clearly evinces a preference for compliance in lieu of prosecution.”

In this era of so-called aggressive FCPA enforcement, does the DOJ have its priorities backwards