TheCorporateCounsel.net

On Monday, the DOJ announced the highly anticipated, updated Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA). In a Tuesday speech, the head of the DOJ’s Criminal Division summarized the updated guidelines, noting that they “provide evaluation criteria and a non-exhaustive list of factors to balance when deciding whether to pursue an FCPA case.” The listed, non-exhaustive factors (no one factor is necessary or dispositive) include whether the alleged misconduct:

– Deprived specific and identifiable U.S. entities of fair access to compete;

– Involves key infrastructure or assets;

– Bears strong indicia of corrupt intent tied to particular individuals and serious misconduct; or

– Is associated with the criminal operations of a Cartel or Transnational Criminal Organization. 

He continues, “The through-line is that these Guidelines require the vindication of U.S. interests. People have speculated about the meaning of that phrase, but the DAG’s memo makes it clear. It is not about the nationality of the subject or where the company is headquartered. In plain terms, conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement. Conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.”

We’re posting memos in our “Foreign Corrupt Practices Act” Practice Area.

– Meredith Ervine