After much anticipation, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) most recently issued their guidance on the application and enforcement of the Foreign Corrupt Practices Act (FCPA).

This emphasizes that enforcement is still of primary importance to the American economy and underlines different situations where the government may (or may not) exercise their enforcement powers into formal action.
The guidance is both informative in its outline of regulatory and legislative obligations and practical for firms looking to develop effective compliance programs. In particular, it provides useful information for companies looking to protect themselves through establishing effective compliance regimes, thereby mitigating their potential exposure to possible enforcement actions due to failed or inadequate compliance systems.

Some of the more salient points that the two bodies discussed regarding compliance programs are outlined below:
Primarily, the guidance provides reiteration of the standard for compliance programs – there is no cookie-cutter solution to every organization’s compliance concerns. A truly successful compliance program, whether it’s all-encompassing or for the FCPA alone, addresses very specific risks that will inevitably vary from organization to organization. These risks need to be assessed individually and have compliance controls and monitoring procedures based off of them. This forms the foundation for a risk-based compliance regime.

The guidance goes on to specify various strategies to form a risk-based compliance regime for the FCPA. For example, it emphasizes ample resource allocation to assess material contracts in particularly high-risk locations. This is particularly useful for those organizations that do not have many resources and would benefit from this sort of prioritization. Another strategy put forth in the guidance is that of making an example of those who have received disciplinary action. This would ideally work to illustrate to others the potential perils of misconduct and illicit behaviour.

Overall, these are just a few examples of the DOJ and SEC emphasizing that they do not take their FCPA enforcement abilities lightly. Most importantly, the guidance provides many useful compliance strategies and sheds further light on the regulatory approach that the American government is taking in light of both the current domestic and global economic situations.

References: A Resource Guide to the U.S. Foreign Corrupt Practices Act