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Complying With The Foreign Corrupt Practices Act: A Practical Primer

[A new job has been posted to the Jobs Board – see here.  Both job seekers and organizations seeking to hire individuals with FCPA or related experience will benefit from a wide selection of job listings, so please spread the word and send the job link to your HR department and professional contacts]

This “new era” of FCPA enforcement has resulted in many things.  From my perspective, one of the best things it has resulted in is increased attention of the FCPA and FCPA compliance among academics and students.

The ABA Criminal Justice Section’s Global Anti-Corruption Task Force (here) recently published “Complying With the Foreign Corrupt Practices Act:  A Practical Primer” (here).  The report is authored by University of Chicago Law Students Salen Churi, David Finkelstein, Joe Mueller; University of Chicago Law School faculty Dean David Zarfes, Michael Bloom, and Sean Kramer;  and Corporate Lab participants John Frank and Michel Gahard (both of Microsoft).  The University of Chicago Corporate Lab (see here) objective is “to provide students with ‘real-world’ experience and context, to prepare them to become well-rounded legal practitioners with sound legal and business judgment, and to provide them with opportunities to work on cutting-edge projects with multinational companies.”

Among other things, the purpose of “Complying With the Foreign Corrupt Practices Act:  A Practical Primer” is to provide “a framework for developing effective [FCPA] compliance programs.”  As the report notes, “[t]he available guidance from the government on how to comply with the FCPA’s requirements and prohibitions is extremely limited” and “the guidance that the government has made available is vague, disjointed, and sparse.”

The report contains a comprehensive overview of the “purposes of a compliance program,” the “facets of a compliance program,” “sources of guidance in crafting a compliance program” and various “metrics for an effective compliance program.”  However, contrary to the apparent suggestion in the report, the comprehensive FCPA best practices policies and procedures identified do not “protect companies from exposure to [FCPA] liability.”

This big-picture issue was presumably beyond the scope of the report, but it is the issue I addressed in my recent scholarship “Revisiting a Foreign Corrupt Practices Act Compliance Defense” (see here – forthcoming Wisconsin Law Review).  The comprehensive FCPA policies and procedures thoroughly discussed in the University of Chicago report should matter, as a matter of law (not merely in the opaque, inconsistent and unpredictable world of DOJ decision making),  when a non-executive employee or agent acts contrary to those policies and procedures and in violation of the FCPA.


Qualcomm is a company with a long list of awards and recognition (see here) such as a Fortune “most admired company” and a Barron’s “most respected company.”  Although the specific facts of Qualcomm’s disclosure are not yet known, on perhaps a related note to the topics discussed above, the company disclosed yesterday in its  10-Q filing (here) as follows.  “On January 27, 2012, the Company learned that the U.S. Attorney’s Office for the Southern District of California/DOJ has begun a preliminary investigation regarding the Company’s compliance with the Foreign Corrupt Practices Act (FCPA), a topic about which the SEC is also inquiring. The Company believes that it is in compliance with the requirements of the FCPA and will continue to cooperate with both agencies.”

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