One of the best things ever written about the FCPA was penned nearly 35 years ago by Robert Primoff who stated: “The government has the option of deciding whether or not to prosecute. For practitioners, however, the situation is intolerable. We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation. That would produce, in effect, a government of men and women rather than a government of law.”
Earlier today, the Foreign Corrupt Practices Act space once again witnessed a government of individuals rather than law as the DOJ announced yet another non-binding FCPA enforcement policy document.
Several forthcoming posts will examine in greater detail the “revised FCPA corporate enforcement policy”, but for now set forth below are the relevant portions of Deputy Attorney General Rod Rosenstein’s speech. (See here for the actual new policy in the U.S. Attorneys’ Manual. Note: the new policy is 9-47.120, the other FCPA portions in the USAM have been there for years).