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Thoughts on the Proposed FCPA Guidance

By Jacqueline C. Wolff and Nicole German Di Schino

This year may mark the beginning of a new, more predictable era in the world of FCPA compliance and enforcement. In November 2011, Assistant Attorney General (AAG) Lanny Breuer announced that the Department of Justice (DOJ) would release “detailed guidance” on the FCPA's criminal and civil enforcement provisions before the end of 2012. See www.justice.gov/criminal/pr/speeches/2011/crm-speech-111108.html. Such guidance has been regularly requested by the legal and business communities. In fact, the FCPA statute itself contemplated that the DOJ would provide this sort of guidance as long ago as 1989. Section 78dd-a(d) of Title 15 states that the Attorney General “shall determine to what extent compliance with [the FCPA] would be enhanced and the business community would be assisted by further clarification [and] may issue guidelines describing specific types of conduct, associated with common types of ' business contracts, which ' would be in conformance with the [FCPA].”

In the 35 years since the FCPA was enacted, the DOJ has provided guidance in the form of Opinion Procedure Releases. But these are specifically limited to the particular facts presented and have limited value for anyone other than the requestor.

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