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An Analysis of the DOJ and SEC's Long-Awaited New FCPA Guidance

By H. David Kotz

On Nov. 14, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) jointly released the long-promised FCPA guidance, entitled “FCPA: A Resource Guide to the U.S. Foreign Corrupt Practices Act” (hereinafter, referred to as the Guide). While the Guide is lengthy and addresses many topics, it is also carefully written in such a manner as to not limit the DOJ and SEC's future ability to broadly interpret the FCPA. Furthermore, there are several areas where hoped-for clarification did not completely materialize.

There are, however, several useful examples and guidance points in the Guide that will assist practitioners and companies in understanding how the FCPA may be interpreted in the future. This article discusses some of the more significant issues that were addressed as well as the ones that were not addressed in as much detail as was hoped.

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