Barry Pollack's article on Department of Justice (DOJ) guidance surrounding the Foreign Corrupt Practices Act (FCPA) was quoted in a recent blog post. According to Pollack, DOJ settlement documents, including non-prosecution agreements (NPAs) and deferred prosecution agreements (DPAs) are serving as de facto agency jurisprudence guiding corporate conduct. "While publicly available resources regarding settlement dispositions through plea agreements, DPAs, and NPAs are helpful in providing corporations with some insight into the DOJ's enforcement priorities and practices, there are some very important differences and limitations which distinguish these settlement documents from case law," Pollack said. "Accordingly, these documents provide fertile ground for the prosecution to advance expansive enforcement theories based on bare-boned and undeveloped factual assertions without having to meet the burden of proof beyond a reasonable doubt, given that the promise of avoiding the costly and risky endeavor of litigation through settlement provides every incentive to corporate defendants to accept the prosecution's position so long as the matter is resolved quickly and for the lowest fine possible."
Regarding the 2012 FCPA guidance, Pollack said, "Overall, while the Guide is comprehensive and represents an unprecedented undertaking, it marks no sharp departure from current practice. Rather, the Guide clarifies the statute and how it is applied by the enforcement agencies, expressly confirms pre-existing enforcement practices and policies apparent in settlement documents to practitioners in the field, and consolidates current agency thinking into a single, comprehensive reference source."