Homebound DOJ and SEC Lawyers Turn Attention to New Guidance for Unchanged FCPA Law
Contributors Ryan McConnell, Meagan Baker Thompson and Matthew Boyden break down the new Foreign Corrupt Practices Act Guide by chapter.
July 06, 2020 at 02:45 PM
7 minute read
In Houston, we are experiencing a spike in COVID-related cases, with a mandatory mask order, bars closed. Beaches closed for the Fourth of July. Limited fireworks. No BBQ. Even tubing has been called off. Most of our days are spent looking at the inside of other people's homes (or, now that people have figured out videoconferencing, some scenic background). Most courts are closed. Trials postponed. Human contact is limited to muffled conversations with the cashier at the grocery. We understand the restrictions and tough decisions our political leaders have to make, but it has been hard. There has been little to celebrate. But now we have something.
We've waited eight years for the U.S. Department of Justice and Securities and Exchange Commission to provide us with more hypotheticals and settle the "anti-corruption" versus "anticorruption" debate. And now, the DOJ and SEC reward our Hachiko-like loyalty with a new Foreign Corrupt Practices Act Guide (2nd Edition). They came through for us the day before Independence Day, during extraordinarily difficult times—a global pandemic, efforts to rethink U.S. law enforcement and evaluate our moral compass as a country. Who knew we just needed prosecutors working at home to get this golden goose?
For those wondering, no, the law has not changed. A lot has happened since the DOJ and SEC unveiled the first edition in 2012. Cases have been decided. The administration has changed and rolled out enforcement policies. We don't get a lot of trials or case law on the FCPA—evidence is hard to get, and sometimes juries are not as excited about cases mostly outside the U.S. when they are dealing with crime and problems here in the U.S. If you don't want to pay for access to the FCPA Professor's unparalleled library of information, the guide remains a one-stop shop for all things FCPA-related. To the extent it tries to capture case law, it's the latest until the next case is published. The policy announcements are relevant until the next iteration. Don't print it out—it's long and a lot of paper (and who knows when you'll get more).
On to the good stuff. There are a lot of minor changes we won't bore you with (e.g., updating the DOJ Fraud Section's contact information). You want to know the important stuff. We'll break it down by chapter.
• Cover. This stayed virtually the same and is probably the biggest letdown of the new guide. Eight years and we can't come up with something better than a map.
• Chapter 1. Some really good information here on the Inter-American Convention Against Corruption and other authorities that are now on the DOJ's website.
• Chapter 2. Some new hypotheticals drawn from recent cases. For instance, small gifts are OK, but not a $12,000 birthday trip to a government official that included winery tastings and dinners. A new U.S. Court of Appeals for the Second Circuit court case is included (United States v. Ng Lap Seng) dealing with jury instructions on an affirmative defense. Good stuff. Some rewording to the facilitation payment language (nothing substantive, which makes sense because the U.S. law has not changed). A couple of typos fixed (e.g., multinational one word versus two). The guide notes that sometimes, robust pre-acquisition due diligence is not possible, so the DOJ and SEC will look at what else the company did (paraphrased language, and there wasn't really any doubt here, was there?).
• Chapter 3. This is about accounting. No one reads this, so who cares how it was changed? Just kidding—easier to prove accounting cases are critical tools of FCPA enforcement! There are new cases involving a hedge fund here and an electronics company. We had to search through the 442 footnotes to find the names of the cases (we won't mention them here to avoid a spoiler). These were deferred prosecution agreements (the government filed charges and then dismissed them once the company paid up), so if you want to know more about them, you'll have to read Gibson, Dunn & Crutcher's yearly deferred prosecution update.
• Chapter 4. This one is about laws other than the FCPA that are related to the FCPA. This chapter remains predominantly about the Travel Act (the U.S. commercial bribery law). Nothing really new here.
• Chapter 5. The latest enforcement policy information from the DOJ Justice Manual (the old U.S. Attorney's Manual). The latest iteration of 9-27.00 (principles of federal prosecution) and 9-28.00 (prosecution of business organizations) is here. The DOJ website is probably the best source for this information, which tends to change more frequently than the eight years it took to update the FCPA Guide. The Corporate Enforcement Policy is also here (again, could change in eight years, so be safe and check the actual website). Also, language and references to the DOJ's latest policy on evaluating corporate compliance programs (redline of last three versions compared here). A simple reference to the policies and the DOJ site would have saved some paper.
• Chapter 6. The penalties are generally the same. Slightly higher for certain civil penalties (around 30%). Also, some information here about how the DOJ may coordinate with other regulators. And, finally, the DOJ's policies on monitor appointment (also available on the DOJ's website, and subject to change).
• Chapter 7. Some information added here about how other countries resolve cases and incorporates information about the corporate enforcement policy.
• Chapter 8. Minor tweaks to whistleblower language.
• Chapter 9. No real substantive changes on the portion devoted to opinion releases.
• Chapter 10. Some stylistic changes (e.g., nongovernmental changed to non-governmental). Update your policies where necessary.
• Footnotes. There are a lot of them. Now 442 compared to 418, which works out to three new footnotes per year over the eight years.
In times like this, it's helpful to have the DOJ and SEC lawyers to provide some levity to our days filled with conference calls and kids asking when it's their turn to play on the videoconference. We may have to wait another eight years for the government to settle the "anti-corruption" versus "anticorruption" debate—the guide uses "anticorruption" three times and "anti-corruption" 61 times. But we can wait. It gives us something to write about and reach out to our clients. And they love it when we send them marketing materials!
Ryan McConnell, Meagan Baker Thompson and Matthew Boyden are lawyers at R. McConnell Group—a boutique law firm that focuses on litigation and governance issues. McConnell is a former assistant U.S. attorney in Houston who has taught criminal procedure and corporate compliance at the University of Houston Law Center. Thompson is a thought leader on corporate governance and compliance issues, having taught corporate compliance at the University of Houston Law Center and helped numerous Fortune 500 companies navigate complex compliance and investigation issues. Boyden spent 20 years as a postal inspector before joining the U.S. Attorney's Office and is a recognized international expert in business email compromise and payment diversion techniques. Send column ideas to [email protected]. Follow the firm on Twitter at @rmcconnellgroup.
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