SEC and DOJ release long awaited FCPA Guidance
The United States Securities and Exchange Commission and the US Department of Justice have jointly just released their new guidance for businesses under the FCPA, styled as a "resource guide". Here it is. This guidance has been long awaited and was produced as a result of a request made at the beginning of the year by many American organisations who together represent over 3 million businesses in the US in the form of a letter to the SEC and the DOJ. We blogged on that letter here.
The guidance is quite a tome at 120 pages, including the appendices, and is around 3 times longer than its UK Bribery Act counterpart, itself dated 30 March 2011. It is divided into the a number of chapters. This is what is inside:
- The FCPA: anti-bribery provisions
- The FCPA: accounting provisions
- Other related US laws
- Guiding principles of enforcement
- FCPA penalties, sanctions, and remedies
- Whistleblower provisions and protections
- DOJ opinion procedure
We will be working our way through it methodically over the next few days and will provide some initial thoughts on it as we proceed. A comparison with the UK Bribery Act guidance may be informative.
We do notice, however, that, like the UK version of the guidance, it is not intended to have legal effect, and so therefore will not bind any court or indeed any prosecutor.
Also, we do not know whether the guidance has addressed the many concerns which corporates and practitioners have been voicing about the FCPA. A comparison with the February letter may also indicate whether these concerns have been adequately addressed.