On July 3, 2020, DOJ and SEC have released the Second Edition of the Resource Guide (the “Second Edition").
The Second Edition reflects several key FCPA-related updates and developments from the past 8 years, although the core of the Resource Guide remains the same.
The key updates in short are the following:
- the definition of “foreign official” incorporates recent case law on the term “instrumentality” for purposes of identifying “foreign officials” under the anti-bribery provisions;
- the hallmarks of an effective compliance program are clarified and it is added a new hallmark: Investigation, Analysis, and Remediation of Misconduct;
- the sector on M&A and corporate successor liability is reinforced, by including recent examples on DOJ enforcement actions and practical advice to companies with respect to due diligence and disclosure obligations;
- criminal violations of the accounting provisions and DOJ's position on the limitations period for FCPA violations are further clarified, by stating that a criminal violation requires a "knowing and wilful failure to comply with the FCPA’s books and records or internal controls provisions". For the violations of the FCPA accounting provisions, a limitation period is increased from 5 to 6 years; and
- it includes specific references to several policies applicable to the FCPA and that have been adopted by the DOJ and SEC since 2012, including the Policy on Coordination of Corporate Resolution Penalties (the Anti-Piling On Policy), the FCPA Corporate Enforcement Policy, the Selection of Monitors in Criminal Division Matters and the Evaluation of Corporate Compliance Programs.
In addition, the Second Edition provides, on the above and other topics, detailed information about the statutory requirements as well as insight into DOJ and SEC practices thorough hypotheticals, examples of enforcement actions and declinations, and summaries of applicable case law.
As stated in the previous version, the Resource Guide "is non-binding, informal, and summary in nature" and it does not constitute a rule or regulation as such. However, this Resource Guide continues to be one of the most useful reference guide and a key resource for practitioners and corporations.
Stay tune for our deeper analysis on the Second Edition that we will publish shortly.