An interesting article by Matthew Miner, Eric Sitarchuk, Jaclyn Whittaker and Amanda Robinson from Morgan Lewis looking at the recently published Second Edition of A Resource Guide to the U.S. Foreign Corrupt Practices Act. This is an important guide for anyone seeking compliance with the FCPA and acts as a useful reference for parties outside of the scope of the FCPA but seeking to adopt good practices in this regard.
As the authors outline, there are notable updates on:
- M&A and corporate successor liability;
- Clarifying the application of weaknesses to internal accounting controls;
- More commentary on what makes an effective compliance program;
- Including references to updated policies from the DOJ & SEC;
- Providing more relevant examples around enforcement as well as setting out the Guiding Principles of Enforcement;
- Providing more clarity on certain definitions such as: "agent" and "instrumentality" in respect of foreign officials;
- Clarifying DOJ’s position on the limitations period for FCPA violations;
- Including court rulings on disgorgement; and
- Correcting the mens rea standard for criminal liability for books and records and internal controls violations.
Economic crime, which includes bribery and corruption, is increasingly becoming an increasingly boardroom topic, or at least it should be. Senior management should be fully aware of the risks that their company faces and how those risks are mitigated. The risks of course are not limited to the company itself but also its supply chain. And if you fall within the jurisdiction of the FCPA, then this guidance is something that should be thoroughly digested and applied to existing controls to help mitigate the risk.
The greater willingness of defendants to challenge FCPA prosecutions has led to an expansion of the body of case law interpreting the FCPA. The Second Edition incorporates these developments, including recent court decisions in United States v. Hoskins and SEC v. Liu. Notably, the Second Edition incorporates the FCPA Corporate Enforcement Policy, among other policies, for the first time. As before, the updated guidance continues to provide a detailed compilation of information about the FCPA, its provisions, and DOJ and SEC enforcement.