Six years ago today, on November 14, 2012, 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 6 years old.
Yet, on this sixth 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.
This prior post highlighted the Second Circuit’s recent decision in U.S. v. Hoskins in which the court rejected the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national.
This post continues the analysis by highlighting various “big picture” issues.
Legislative History Matters
In large part, the Second Circuit’s opinion was based on the FCPA’s legislative history demonstrating once again that legislative history matters.
Recently Charles Duross (former DOJ FCPA Unit Chief) and Karen Brockmeyer (former SEC FCPA Unit Chief) penned this article in Law360 titled “The Untold Story of the FCPA Guidance.”
What is untold in the article though are numerous facts and circumstances relevant to how and when the FCPA Guidance was issued in 2012. These facts and circumstances are highlighted below.
Five years ago today, on November 14, 2012, 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 and now 5 years old.
Yet, on this fifth anniversary of the FCPA Guidance, it is useful to take a look back.
As highlighted in this post, the 2012 FCPA guidance was a long-time coming to say the least.
You really can’t make this one up and there is a reason why, unfortunately but justifiably, many view Foreign Corrupt Practice Act enforcement with cynicism.
In 2012, Robert Khuzami was head of the SEC’s Division of Enforcement when the SEC, along with the DOJ, issued FCPA Guidance.
The Guidance was signed by two individuals: Khuzami and then Assistant Attorney General Lanny Breuer.
Just above Khuzami’s signature, the Guidance states:
