March 01, 2012

Jenner & Block Partners Iris E. Bennett, Joseph P. Covington, Jessie K. Liu, Michael K. Lowman, and Thomas C. Newkirk, and Government Contracts Emerging Issues Attorney Cynthia J. Robertson authored and published the 2012 edition of the Foreign Corrupt Practices Act (FCPA) Business Guide.  This comprehensive and unique resource provides practical guidance for companies competing in the global marketplace and analyzes the latest developments and trends in FCPA enforcement.  The Guide provides an overview of the statute and addresses frequently asked questions that companies operating in the international marketplace have about compliance with the FCPA.  

This year’s Guide also includes an updated format for the year’s case summaries which breaks out for each case the nature of the conduct, the amount of the alleged improper payments, the benefit received, the type of resolution and financial sanction amount, and any legal issues of note.  This new format provides readers with a quick reference to the key points for understanding each case.

The year 2011 was marked by a continued high level of enforcement.  In addition, it was the year in which more FCPA cases were litigated at trial than in any year previous.  Because of this, there are now additional federal court decisions concerning the interpretation and application of various aspects of the statute.  

Regarding how FCPA enforcement has fared in the courts, 2011 reveals two notable themes.  On the one hand, the Department of Justice (DOJ) has been mostly successful in convincing the federal courts to rebuff legal attacks on the government’s reading of the statute.  The courts issued opinions favorable to the government on (1) the definition of a “foreign official”; (2) willful blindness as a basis for prosecution; and (3) federal jurisdiction over commercial bribery committed abroad.  On the other hand, the DOJ encountered difficulties in obtaining convictions at trial in not just one, but several, of the cases litigated last year.  These difficulties arose from issues of proof, problematic government witnesses, and even in one case prosecutorial misconduct.

Some might question whether the government, in its zeal to prosecute aggressively in this area, has brought some flawed cases.  And, for some time, we and others in the defense community have questioned whether the government has been over-zealous in its dealings with corporate defendants that voluntarily disclose and cooperate with the government, by not giving sufficient credit to such companies.  DOJ prosecutors, however, say that the setbacks the Department experienced in the past year were case-specific, and that the Department’s overall enforcement approach is not likely to be affected.  Nor is it apparent that the DOJ – or its sister enforcement agency in this area, the Securities and Exchange Commission – believe that they need to do more to provide adequate credit to companies that disclose or cooperate.  It is nonetheless the view of the authors of this Guide that greater credit for disclosure and cooperation, or even a reform to the law providing for a legal defense to liability based on an adequate compliance program, deserve serious consideration.

Other points worth noting regarding the 2011 docket were an ever increasing number of cases involving China, highlighting the risks in that region; new additions to the universe of cases involving excessive gifts and hospitality rather than outright cash payments; and a continued effort to enforce the FCPA against foreign companies and nationals, sometimes with aggressive jurisdictional theories.

The FCPA Practice Group offers a wealth of experience and includes eight former federal prosecutors and a former federal defender, as well as several former enforcement attorneys with the SEC.  The Group includes the former Chief of the DOJ’s international fraud enforcement component (i.e., the group responsible for enforcing the FCPA at that time); the former Associate Director of the Division of Enforcement for the SEC, and two former Assistant Chief Litigation Counsels for the SEC; and the former Deputy Attorney General in charge, Criminal Division, New York State Attorney General’s Office.  The FCPA Practice Group is part of the larger White Collar Criminal Defense and Investigations Practice, which includes two former United States Attorneys and more than a dozen former Assistant U.S. Attorneys and a former federal defender.  We provide a wide array of services to clients facing FCPA compliance issues.

If you would like a hardcopy of this publication mailed to you, please contact Elsie Henson at or at 202-639-6894.