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.
For instance, in the 1988 FCPA amendments Congress encouraged the DOJ to issue FCPA guidance. The DOJ refused.
In 2002, the OECD encouraged the DOJ to issue FCPA guidance. The DOJ refused.
In 2010, the OECD again encouraged the DOJ to issue FCPA guidance. The DOJ again refused.
In the aftermath of the November 2010 Senate FCPA hearing the DOJ was again encouraged to issue FCPA guidance. The DOJ again refused.
It was only after the FCPA reform movement gained steam in 2011 that the DOJ made the political move in announcing that FCPA guidance would be forthcoming. Tellingly as to the DOJ’s political motivations, actual issuance of the guidance took over one year and occurred a few days after the 2012 elections. For more on the above chronology of events, see the article “Grading the FCPA Guidance.”
As discussed in this November 2012 post, there was little new information in the FCPA Guidance to those previously knowledgeable about the FCPA and its enforcement. Yet, to those persuaded by non-lawyer journalist coverage of FCPA topics and/or FCPA Inc. participants seeking convenient hooks to market FCPA compliance services, the guidance was indeed “new.”
Sure, the FCPA Guidance was a useful document to the extent it captured in one document the DOJ and SEC’s views on the FCPA and related topics. But that is all the guidance did.
Criticism of the FCPA Guidance was widespread, including by former high-ranking DOJ officials. (See this prior post rounding up approximately 50 law firm client alerts, etc. regarding the guidance). For instance, Steven Tyrrell, former chief of the DOJ fraud section stated that the guidance was “more of a scrapbook of past DOJ and SEC successes than a guide book for companies who care about playing by the rules.” (See also this prior post highlighting former Deputy Attorney General Larry Thompson’s views on the guidance.)
Indeed, the FCPA Guidance did not represent the “law,” but rather DOJ and SEC interpretations of the law and as highlighted in this article the guidance was not a well-balanced portrayal of the FCPA as it was replete with selective information, half-truths, and, worse information that was demonstratively false.
The passage of time further demonstrated this point as the Supreme Court and appellate courts disagreed with positions advanced in the guidance.
Has anything really changed in the eleven years since the FCPA Guidance?
As far back as 1982 it was recognized in the FCPA context that the United States should be a nation of laws, not a nation of men and women issuing non-binding guidance.
The 2012 FCPA guidance was just that – men and women issuing non-binding guidance.
The April 2016 DOJ Pilot Program was just that – men and women issuing non-binding guidance.
The November 2017 DOJ FCPA Corporate Enforcement Policy (CEP) was just that – men and women issuing non-binding guidance.
Indeed, just as the men and women who authored the 2012 guidance soon left the government, the men and women who drafted the FCPA Pilot Program and CEP soon left the government.
And so it goes.
But wait, a Second Edition of the FCPA Guidance was released in 2020 (see here).
However, like the First Edition of the FCPA Guidance in 2012, the Second Edition also contains several false statements, half-court truths and is full of selective information. (See here).
And what about the three identified authors of the Second Edition of the FCPA Guidance?
You guessed it, soon authoring the guidance they all left the government.
And so it goes.