New Guidelines Issued for FCPA Enforcement

The U.S. Department of Justice (DOJ) has issued guidelines for the investigations and enforcement of the Foreign Corrupt Practices Act (FCPA).

These guidelines were issued because of an Executive Order issued by President Donald J. Trump on February 10, which stated, “FCPA enforcement impedes the United States’ foreign policy objectives and therefore implicates the President’s Article II authority over foreign affairs.” The order required a review by the U.S. Attorney General of current FCPA guidelines and policies, with new guidelines and policies issued if the Attorney General saw fit.

The guidelines mandate prosecutors focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures; proceed as expeditiously as possible in their investigations; and consider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation, not only at the resolution phase.

The four-page guidelines go on to list some factors prosecutors must take into account, including prosecuting activities linked to cartels and transnational criminal organizations; considering whether “the alleged misconduct [of bribery] deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals;” and focusing “on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”

The DOJ states that the guidelines govern all current and future investigations and enforcement actions of the FPCA.

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