In 1988 Congress encouraged the DOJ to issue FCPA guidance. It took nearly 25 years, but kudos to the DOJ (and SEC) for finally doing so and collecting in one document information that was previously scattered. In this way, the guidance has substantial value and is easily accessible to anyone.
However, as expected, there is little new information in the guidance to those previously knowledgeable about the FCPA and its enforcement.
It is important for people reading the guidance to understand that it does not represent the “law,” but rather DOJ and SEC interpretations of the FCPA and its enforcement policies and procedures. In many ways, the guidance is an advocacy piece, and in certain instances – such as jurisdictional issues, the business nexus element and others – what the enforcement agencies say in the guidance has been rejected, in whole or in part, by courts.
Although the guidance is a long document at approximately 120 pages, the most important words appear in the footnote which state that the guidance is non-binding and does not in any way limit the enforcement intentions or litigating positions of the DOJ or SEC.
What FCPA enforcement needs at this critical juncture is not non-binding enforcement agency guidance, but limited structural reforms such as a compliance defense and abolition of non-prosecution and deferred prosecution agreements.