When the DOJ resumed foreign bribery investigations and released updated FCPA Enforcement Guidelines, the narrowed focus of enforcement on “matters that relate to U.S. strategic interests” caused the DOJ to close “nearly half of its foreign-bribery investigations to align with new guidelines.” Earlier this month, the DOJ unsealed its first FCPA enforcement action and issued its first declination since resuming enforcement. The updated guidelines directed FCPA investigations and enforcement actions to focus on a non-exhaustive list of four factors.

This WilmerHale alert notes that the “conduct involved in the indictment and in the declination does not appear to squarely fit into the four named factors, suggesting that the FCPA Unit will not be strictly confined by these factors in practice.” It describes the circumstances surrounding the indictment and the declination and then shares key takeaways for companies, a few of which are below:

– Given the DOJ’s stated prioritization of cartels and TCOs, the recent indictment may be an indication that conduct in Mexico and elsewhere in Latin America will receive greater scrutiny by U.S. law enforcement authorities. Companies should ensure that appropriate compliance resources are devoted to their activities in the region.

– Interestingly, there is no explicit indication in the indictment that the relevant companies were competing with U.S. companies or that U.S. companies were harmed in any way, despite the June Guidelines’ emphasis on limiting undue burdens on American companies that operate abroad. And, as noted above, any alleged connections to cartels seem unrelated to the conduct at issue.

– Similarly, the declination bolsters the conclusion that the DOJ will continue to pursue enforcement actions for conduct that falls outside the factors outlined in the June Guidelines.

– Finally, the declination demonstrates that the DOJ will continue to issue declinations under the CEP for companies that self-disclose potential FCPA violations, fully cooperate, remediate and disgorge profits relating to the improper conduct.

We’ll be posting resources in our “Foreign Corrupt Practices Act” Practice Area. Check it out for more info.

– Liz Dunshee