DOJ And SEC Affirm Continued Commitment To Rigorous FCPA Enforcement

Author:Ms Amy Conway-Hatcher, Tiffany D. Johnson and Benjamin D. Klein
Profession:Morgan Lewis

At the 26th annual National Conference on the Foreign Corrupt Practices Act (FCPA), held November 8 and 9, 2011, officials from the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) stressed that both agencies are committed to FCPA enforcement and will continue their aggressive pursuit of companies that violate the FCPA.

DOJ Makes FCPA Enforcement a Top Priority

Associate Attorney General Lanny Breuer declared that the DOJ has "no intention whatsoever of supporting reforms whose aim is to weaken the FCPA and make it a less effective tool for fighting foreign bribery." Breuer's statement was in response to efforts by the U.S. Chamber of Commerce's Institute for Legal Reform to push for amendments to the FCPA that would provide a compliance program defense against FCPA charges, limit successor liability, impose a "willfulness" requirement for corporate criminal liability, and limit a parent corporation's civil liability for acts by a foreign subsidiary. The U.S. Chamber of Commerce retained former Attorney General Michael Mukasey in early 2011 to assist with its efforts to reform the foreign bribery law, and there is speculation that a new bill will be introduced soon. Breuer asserted that, given the turning tide against corruption in many parts of the world, as measured by the number of nations that have passed antibribery legislation as well as by the recent popular uprisings in the Middle East that were fueled in part by public outrage over corruption, "this is precisely the wrong moment in history to weaken the FCPA."

Throughout 2011, FCPA enforcement has continued to be one of the DOJ's top priorities. As of September 2011, there were an estimated 33 resolved FCPA enforcement actions for the year. While the number of FCPA matters resolved in 2011 will almost certainly exceed the number resolved each year in the period from 2007 to 2009, it is slightly behind 2010's record pace of 74 resolved FCPA enforcement actions. One reason for the decline in resolved enforcement actions may be the increase in FCPA trials. Breuer stated in a speech that the DOJ is currently in the midst of its fourth FCPA trial of the year, an amount "more than in any prior year in the history of the [FCPA]."

Breuer also highlighted new FCPA enforcement initiatives, announcing that the DOJ soon will be releasing a "detailed new guidance on the FCPA's criminal and civil enforcement provisions." Although the extent of the guidance is unclear...

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