Jenner & Block

Jenner & Block Guide Examines FCPA Enforcement in 2012

Jenner & Block Partners Iris E. Bennett, Joseph P. Covington, Jessie K. Liu, Michael K. Lowman, and Thomas C. Newkirk, and Government Contracts Counsel Cynthia J. Robertson authored and published the 2013 edition of the Foreign Corrupt Practices Act (FCPA) Business Guide

The FCPA Business Guide provides an overview of the statutory framework as well as answers to frequently asked questions relevant to corporate counsel, compliance officers, and corporate personnel seeking practical tips on FCPA compliance. The Guide also reviews the past year’s enforcement docket, relevant federal court litigation, and the most recent opinion releases issued by the Department of Justice.  This year, the Guide authors also take a fresh look at the recurring question of whether there is an identifiable benefit to voluntary self-disclosure for companies, based on information from settlements from the past five years.

The DOJ and SEC brought a combined total of 22 enforcement actions in 2012, the lowest number since 2006.  The year 2012 also saw fewer FCPA actions against individuals than in recent years.  This decline from recent years is more likely an anomaly than the beginning of a trend.  DOJ and SEC officials have given no indication that the agencies intend to let up on FCPA prosecutions. In addition, as reflected in the discussion of the 2012 docket provided in the FCPA Business Guide, recent cases continue to reflect aggressive enforcement theories, for example with respect to extraterritorial jurisdiction.

The most significant development in 2012, however, was arguably not any particular case or enforcement trend reflected in the cases but, rather, the joint release of the long-awaited Resource Guide to the U.S. Foreign Corrupt Practices Act by the DOJ and SEC.   The overall approach to FCPA enforcement as well as the statutory interpretations set forth in the DOJ/SEC Resource Guide reflect principles established over the years through DOJ and SEC prosecutions and settlements, DOJ opinion releases, and federal court litigation.  However, the DOJ/SEC Resource Guide provides a useful compilation and in some cases clarifications of prior cases and guidance from these enforcement authorities.  It also reflects a significant investment of time and resources by the DOJ and SEC to describing their views on the statute, its interpretation, and their enforcement authority and discretion in one consolidated document. To see the Jenner & Block summary and analysis of the DOJ/SEC Resource Guide, click here .

Naturally, the information presented herein is not intended to be legal advice in any specific situation.  Such advice could only be provided after a full evaluation of all of the facts and circumstances of a particular matter.

If you would like a hard copy of this publication mailed to you, please contact Elsie Henson at ehenson@jenner.comor at 202-639-6894.