Matthew Reinhard Comments on the DOJ and SEC Jointly Issued Long-Awaited Guidance on the FCPA in The FCPA Report

"DOJ and SEC Jointly Issue Long-Awaited Guidance on the FCPA"
The FCPA Report
11.14.12

Matthew Reinhard commented on the long-awaited DOJ and SEC guidance on the FCPA in the form of a 120-page booklet called "FCPA: A Resource Guide to The Foreign Corrupt Practices Act" (Guide).

According to Reinhard, "The jointly issued DOJ and SEC guidance weighs in at an impressive 120 pages.  It contains a collection of hypotheticals as well as examples of the application of the principles to various factual scenarios.  While the entirety of the guidance will take some time to fully analyze, at first blush it appears to address many of the areas where both the OECD and interest groups were advocating for further clarity.  From a practical standpoint, it appears to formally set forth DOJ and SEC positions that had previously been expressed in an ‘off the record’ or ‘unofficial’ capacity, for example in the area extortion and duress.  Nonetheless, the guidance is just that – guidance – and does not have the force of law."

As Reinhard said, the guidance is non-binding and, of course, does not amend the FCPA.  The Guide stops short of taking concrete policy positions the Chamber of Commerce has been requesting, but it does give companies some guidance on, for example, permissible gifts and entertainment, stating that the government will not go after "[i]tems of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items."

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