More FCPA guidance may be coming soon


The Foreign Corrupt Practices Act (FCPA) has generated vast amounts of controversy as of late, as more companies find themselves on the wrong side of the law and as the Department of Justice comes under more fire for their aggressive approach.

The FCPA has certainly emerged as a big lobbying issue, if not a big election year issue. If the Department of Justice were to release more guidance on compliance with the anti-bribery law, it would be welcome, as many do not understand exactly how the Department is approaching enforcement cases.

Compliance Week notes that, "The business community has been waiting for this FCPA guidance since November 8, 2011, when Assistant Attorney General Lanny Breuer stated in a speech that in 2012 the DOJ planned to 'release detailed new guidance on the [FCPA's] criminal and civil enforcement provisions.' "

Some took that to be an indication that the Department wanted "to head off possible legislative reforms to the FCPA. Groups such as the U.S. Chamber of Commerce have been aggressively lobbying for changes to the FCPA such as an affirmative 'compliance defense' for companies with pre-existing compliance policies and a good faith commitment to FCPA compliance."

For sure, there are other issues, such as who exactly qualifies to be considered as a "foreign official" for legal reasons. Still, others caution that it would be unwise to assume that the law will be less aggressively enforced as a result of the challenges. In any case, it's not clear if guidance is coming. It may be wishful thinking.