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Business Litigation Alert: "DOJ and SEC Jointly Issue New Guidance on The Foreign Corrupt Practices Act (FCPA)

On November 14, 2012, the Criminal Division of the U.S. Department of Justice (“DOJ”) and the Enforcement Division of the U.S. Securities and Exchange Commission (“SEC”) jointly issued much anticipated guidance with regard to the enforcement of the Foreign Corrupt Practices Act (“FCPA”). While the “Resource Guide to the U.S. Foreign Corrupt Practices Act” (the “Guide”) is being criticized by some commentators for what it does not contain, it is, nevertheless, a comprehensive explanation of the Government’s understanding and interpretation of the FCPA, backed by substantial annotated endnotes containing case authority, legislative history and commentary. It is, therefore, both an excellent reference document for compliance professionals and a primer for the many small companies doing business abroad who have yet to adequately address their compliance responsibilities.

Many compliance professionals had hoped to obtain greater precision with regard to such topics as the definition of foreign officials or of state-owned enterprises, or more specific guidance regarding due diligence in the context of mergers and acquisitions. The problem, in that regard, is as much the paucity of case law interpreting the statute as it is a lack of specifics in the statute or guidance from prosecutorial authorities. Shortcomings aside, the Guide should prove to be a very useful tool for compliance professionals and those who need to be more concerned with FCPA compliance.

For a complete copy of the Guide, please visit the SEC website here.

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