As detailed in this prior post, on November 8th Assistant Attorney General Lanny Breuer announced before an FCPA audience that in 2012 the DOJ hopes to “release detailed new guidance on the [FCPA's] criminal and civil enforcement provisions.”
As previously reported by Christopher Matthews on the Wall Street Journal’s Corruption Currents page, Senator Charles Grassley (R-IA) recently sent (see here) U.S. Attorney General Eric Holder a number of questions for the record related to Holder’s recent testimony before the Senate Judiciary Committee – see here. Included in the questions are several about the DOJ’s upcoming FCPA guidance. The FCPA portion of Senator Grassley’s questions are excerpted below.
“Foreign Corrupt Practices Act Guidance
Assistant Attorney General Lanny Breuer recently announced in a public speech that the Department is preparing, “detailed new guidance on the [Foreign Corrupt Practice Act’s] criminal and civil enforcement provisions” to be released next year. At a hearing on the FCPA back in November 2010 [see here for more], many Senators expressed their concerns with the Department’s enforcement of the statute. Specifically, members raised concerns with the fact that the law includes broad language that is not well defined, and that a lack of clear guidance from the Department in the form of advisory opinions has created an air of uncertainty in how U.S. corporations do business abroad. I welcome this call for new guidance to help ensure that businesses that want to do the right thing, know what the right thing is in the eyes of the Justice Department.
(a) When will the guidance be published?
(b) What form will the guidance take and what steps will be taken to ensure that it is implemented nationally and uniformly? Will the guidance be incorporated into in the U.S. Attorneys’ Manual?
(c) Does the Department intend to solicit the views of interested outside parties as it prepares the guidance, particularly the regulated business community? If so, how?
(d) Who at the Department will be primarily responsible for drafting the guidance?
(e) What will be the Securities and Exchange Commission’s (SEC) role in formulating the guidance? Will the SEC be bound by the guidance? Will the Department enter into a Memorandum of Understanding with the SEC regarding the guidance?
(f) AAG Breuer’s remarks indicate that the guidance address the FCPA’s “enforcement provisions.” Will the guidance offer only the Department’s interpretation of the Act’s enforcement provisions or will the guidance set forth the Department’s enforcement policies? i. Will the guidance include the Department’s interpretations of ambiguous statutory terms such as “foreign official” and “government instrumentality”? ii. Will the guidance clarify when a company may be held liable for the actions of an independent subsidiary? iii. Will the guidance clarify the extent to which one company may be held liable the pre-acquisition or pre-merger conduct of another? iv. Will the guidance include an enforcement safe harbor for gifts and hospitality of a de minimis value provided to foreign officials?
(g) Other Department guidelines, including the Corporate Charging Guidelines, indicate that they may not be relied up on by defendants and do not limit the Department’s litigation prerogatives. Will the same be true of the forthcoming FCPA guidance, or will defendants be able to rely upon this guidance in litigation?”
In other FCPA-related Capital Hill news, Congressman Mike Pompeo (R-KS) wants to know why Wichita based Hawker-Beechcraft lost out to Embraer in the U.S. Air Force Light Air Support competition. See here. As detailed in this prior post, Embraer recently disclosed an FCPA investigation. In this recent letter to Secretary of Defense Leon Panetta, Pompeo voiced his concern and last week Pompeo reacted as follows to news that Hawker-Beechcraft lost out to Embraer. ““It is vitally important for the Pentagon to clarify this matter, especially in light of allegations that Hawker’s main competitor in the LAS competition, Embraer, is being investigated for violations of the Foreign Corrupt Practices Act.”