In this article, Barry Pollack and Annie Wartanian Reisinger examine the rationale behind the development of the recent resource guide on the Foreign Corrupt Practice Act (FCPA) published by the U.S. Department of Justice (DOJ) in conjunction with the Securities Exchange Commission (SEC). The authors discuss precedents for the guidance and assess its desirability within criminal enforcement contexts. "The DOJ is an enforcement agency, not a regulatory agency, and typically one does not think of an enforcement agency as a guiding hand overseeing and aiding legal compliance by those who fall within its enforcement jurisdiction," the authors said. "It is a new type of guidance that is not intended to replace the advisory opinion process, but rather to add to the body of guidance available to corporations and individuals attempting to ensure that they do not cross the line of what the DOJ believes is criminally proscribed by the FCPA."
The authors discuss the genesis of the guidance and the establishment of agency jurisprudence, the history of corruption prosecution, and the guidance as it relates to various legal contexts, in order to shape a discussion regarding the new paradigm.