NACDL News Release: "DOJ and SEC Issue Non-Binding 'Guidance' on Foreign Corrupt Practices Act Enforcement," Nov. 14, 2012. Related Materials: FCPA Guidance (pdf), Guidance Fact Sheet (pdf) and DOJ Statement on the Release of the Guidance.
The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. ("FCPA"), prohibits American companies and their employees and agents from giving “anything of value” to “foreign officials” in order to obtain or retain business. Despite its more than 30-year history, there is vast disagreement and uncertainty about the meaning of many of the key provisions of the FCPA. Published judicial decisions interpreting it are sparse, largely because the FCPA was not vigorously enforced until recently and that enforcement has largely focused on corporations, which generally cannot undertake the life-or-death risk inherent in aggressively defending a felony criminal case. As a result, right now the FCPA essentially means whatever the government say it means.
The FCPA is emblematic of the serious problem of overcriminalization. While it seeks to prevent and redress serious misconduct, its language and application have led to unintended consequences. Many organizations, from both the left and the right, are now calling for some much-needed commonsense reform of the statute, particularly reforms that will strengthen its mens rea requirements and bring clarity, uniformity and fairness to its enforcement.
Read NACDL's Coalition Letter to DOJ & the SEC on "Guidance Concerning the Foreign Corrupt Practices Act" and NACDL's Congressional testimony on the need for FCPA reform. Additional resources on the FCPA are available below:
News & Press
DOJ on the FCPA
Commentary & Scholarship
Pictured above: NACDL White Collar Crime Policy Director Shana-Tara Regon testifying before the House Judiciary Crime Subcommittee on June 14, 2011, on the need for FCPA Reform.