Eleven Years Ago The FCPA Guidance Was Issued
Eleven years ago, the DOJ and SEC released the FCPA Guidance. The guidance generated a substantial amount of buzz, but the festive coverage soon subsidized as the guidance turned 1, 2, 3, 4, 5 and now 11 years old.
Yet, on this eleventh anniversary of the FCPA Guidance, it is useful to take a look back.
As highlighted in this prior post, the 2012 FCPA guidance was a long-time coming to say the least.
Common Sense Statements From The Second Edition Of The FCPA Guidance (With Commentary)
Prior posts here, here, here, and here concerned the recent release of a Second Edition of the FCPA Guidance.
This post highlights various common sense statements from the Second Edition (nearly all of them appeared in the original Guidance as well – see here) and provides certain commentary.
“[T]he FCPA does not cover every type of bribe paid around the world for every purpose …” (Pg. 13). Even the DOJ and SEC acknowledge that the FCPA is a limited statute. Moreover, the word “bribe” does not even appear in the FCPA. Rather, specific elements must be satisfied for there to be a violation of the FCPA’s anti-bribery provisions.
The Second Edition Of The FCPA Guidance Contains Several False Statements And Is Full Of Selective Information And Half-Truths
Previous posts here, here and here discussed the early July release by the DOJ and SEC of a Second Edition of the FCPA Guidance.
I took my red pen to the Second Edition and set forth below are numerous examples of false statements, selective information, and half-truths in the FCPA Guidance
The actual words of the FCPA statute matter – yet the Guidance contains several false statements about the law as well as conveniently omits certain statutory language. How courts have interpreted the FCPA matters – yet the Guidance omits several FCPA judicial decisions (including decisions issued since the original Guidance was released in 2012). The Guidance cites certain FCPA legislative history – yet ignores other FCPA legislative on the same topic. The Guidance cites certain FCPA jury instructions – yet ignores other FCPA jury instructions.
In short, the FCPA Guidance (like the original Guidance) is not a fair and balanced portrayal of FCPA legal authority and developments, but rather a one-sided advocacy piece by enforcement agencies who are adversaries to business organizations subject to FCPA scrutiny and enforcement.
Mum’s The Word From The DOJ Regarding Its Secret FCPA Enforcement Actions
Department of Justice officials often talk about the importance of transparency. For instance, officials have stated that “greater transparency benefits everyone” and that the “the Criminal Division stands to benefit from being more transparent ..” (See here).
Indeed, “the DOJ’s and SEC’s continuing efforts to provide increased transparency” was one of the reasons for the recent release of the Second Edition of the FCPA Guidance.
A close read of the FCPA Guidance makes it clear that not all DOJ FCPA enforcement actions are in the public domain. Some are secret. Yet, as highlighted below, when asked to provide certain basic information about these secret FCPA enforcement actions the DOJ declined.
Reflections On The Second Edition Of The FCPA Guidance
As highlighted in this prior post, the DOJ and SEC quietly released a Second Edition of the FCPA Guidance last week on the Friday of a holiday weekend.
Future posts will discuss how: (i) the Second Edition (like the original Guidance) is replete with selective information, half-truths, and worse information that is demonstratively false; and (ii) how the Second Edition (like the Original Guidance) contains several spot-on sensible statements that can be used as a measuring stick for future enforcement activity.
In the meantime, this post offers some big picture reflections on the Second Edition of the FCPA Guidance.