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The Wall Street Journal reports that guidance will be released very soon from the Department of Justice regarding FCPA compliance. Many experts believe that the guidance will provide a more consolidated source for a lot of information that is already available but spread out among various cases and settlement documents.
Experts are unsure as to whether the FCPA guidance will strengthen or relax any of the current requirements of the law. One of the only areas where some expect that the DOJ will announce relaxed regulations is with respect to liability for corporations that acquire a firm that had violated the FCPA before being acquired. As Guidepost Solutions has written about in the past, the FCPA has been listening to concerns about successor liability and has been continuing a trend of giving more flexibility and more time for the successor company to enact a proper FCPA compliance program and to report any violations that are discovered after the acquisition.
Many interested parties and associations have been lobbying for additional reforms that would ease other requirements of the FCPA, such as narrowing the definition of who qualifies as a foreign official and creating an “affirmative defense” for companies that make a good faith effort to implement compliance programs. Most experts agree that all signs from the DOJ so far suggest that they will not ease these restrictions and will continue to aggressively enforce FCPA regulations.
In related news, the Guardian is reporting that United Kingdom’s Serious Fraud Office today announced that it was abandoning previous guidance on the UK Bribery Act and is going to prosecute based “solely on the law.” This will leave companies navigating some potential consequences on their own, and comes after SFO recently pulled certain sections off of its website that provide guidance for complying with the UK Bribery Act. The change in direction may have stark consequences, especially relating to treatment of self-disclosures by companies of potential violations and incentives (or disincentives) for companies to undercover wrongdoing on their own. This change was not a surprise to many following the issues. As reported in an article on LegalWeek.com, many experts had predicted a “more aggressive approach from the SFO, following last year’s appointment of barrister David Green QC as its new director.”
Given this activity from government regulators, it is more important than ever that companies develop a meaningful compliance program that can be adapted if needed to meet changing government expectations. A successful compliance system must adequately educate employees and create a framework that can prevent violations before they occur. Guidepost Solutions has the expertise to implement a truly functional FCPA or UK Bribery Act compliance program. We can help companies protect themselves in the face of strict enforcement of these laws and constantly changing government guidance.
Julie Myers Wood is chief executive officer for Guidepost Solutions LLC. She focuses on regulatory compliance and investigative work with significant experience as an independent monitor.