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DOJ and the SEC issue much‐anticipated FCPA guidance

Roger Witten (Partner at WilmerHale, Washington, District of Columbia, USA)
Kimberly Parker (Partner at WilmerHale, Washington, District of Columbia, USA)
Jay Holtmeier (Partner at WilmerHale, Washington, District of Columbia, USA)

Journal of Investment Compliance

ISSN: 1528-5812

Article publication date: 26 April 2013

144

Abstract

Purpose

The purpose of this paper is to explain the joint guidance on the US Foreign Corrupt Practices Act (FCPA or the Act) published on November 14, 2012 by the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC).

Design/methodology/approach

The paper explains the principal provisions of the Act covered in the joint guidance, where the joint guidance sheds light, and where it leaves uncertainty. Key issues covered are jurisdiction; corrupt intent, knowledge and willfulness; the “business purpose” test; gifts, travel and entertainment expenses; charitable contributions; definitions of foreign officials and instrumentalities; third parties; facilitating payments; extortion/duress; successor liability; accounting provisions; compliance programs; compliance monitors; and prosecution, resolution and declination decisions.

Findings

While it is unprecedented in federal law enforcement that the DOJ and SEC have provided the public with such detailed information on their joint FCPA enforcement approach and priorities, the guidance does not break new ground and generally reaffirms positions the agencies have previously espoused in other contexts. The guidance leaves open some difficult issues facing compliance officers and practitioners.

Originality/value

The paper provides expert guidance by experienced financial services lawyers.

Keywords

Citation

Witten, R., Parker, K. and Holtmeier, J. (2013), "DOJ and the SEC issue much‐anticipated FCPA guidance", Journal of Investment Compliance, Vol. 14 No. 1, pp. 5-15. https://doi.org/10.1108/15285811311321206

Publisher

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Emerald Group Publishing Limited

Copyright © 2013, Emerald Group Publishing Limited

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