It was an odd event a few weeks ago when the U.K.’s Serious Fraud Office removed some Bribery Act guidance from its website without explanation.
The deleted guidance dealt with self reporting, corporate hospitality, and facilitating payments.
Since then, theories about the disappearance have abounded.
So here’s ours.
The DOJ, according to Lanny Breuer, will release its own FCPA guidance sometime soon.
That means the DOJ and SFO now have a unique chance to start marching in step. They can coordinate their guidance. And that’s why the SFO pulled some earlier guidance off its website.
If coordinated guidance happens, what will it mean for the rest of us?
Life would be better for everyone who has to reconcile the transatlantic requirements. But aside from that benefit, there aren’t likely to be any big changes.
Assuming a synchronized approach, self reporting will be encouraged in both Washington and London. Walk-ins at the DOJ and SFO will be promised consideration for their cooperation but not guaranteed any result. The SFO can’t tread on the courts’ sentencing prerogative. And the DOJ wants to keep the flexibility it now enjoys to deal with self-reporting companies.
Corporate hospitality is allowed by the FCPA but only for bona fide promotional expenses. That principle will be restated in the DOJ’s guidance. The SFO will try to say something consistent and encouraging — Director David Green once said he wouldn’t chase companies for showing normal corporate courtesies. In new guidance, he may add that when the courtesies are part of product promotions and demonstrations, that’s even better.
Facilitating payments are allowed by the FCPA but not the Bribery Act. Reconciling that issue is a head scratcher. Probably the SFO will take a practical approach and, with or without specific reference to the FCPA, make it clear that small payments that would fit within the FCPA’s definition of facilitating payments won’t be prosecuted in the U.K.