Where exactly is the FCPA guidance?

Late this summer, press outlets reported on anonymous claims that the Department of Justice and Securities and Exchange Commission  likely would be releasing their long awaited FCPA Guidance in advance of an annual OECD Working Group on Bribery meeting on October 10, 2012.

Such claims made sense when one considered that the OECD Working Group had, in part, prompted the agencies to announce the issuance of the forthcoming Guidance by calling on the agencies to “clarify” certain FCPA requirements and “increase [the] transparency and consistency” of their primary enforcement methods (see the OCED Working Group’s October 21, 2010 Report on the U.S. implementation of the OCED Anti-Bribery Convention).

Now that October 10th has come and gone, however, the business community and the FCPA bar have been left to wonder why the Guidance has not yet been issued and where exactly in the pipeline it is.

This has resulted in several competing theories:

(1)  The Bureaucratic Theory: According to this theory, the agencies have each completed their complimentary Guidance, but its release has been slowed by the federal government’s bureaucratic machinery.  For instance, the Office of Management and Budget often performs in-depth evaluations of proposed regulations, reports and testimony and could still be finalizing its analysis of the Guidance.

(2)  The Electoral Theory: Under this theory, the agencies or the White House have decided to postpone the release of the Guidance until after the election, possibly out of concern that the Guidance might not be well-received by the business community and thus provide additional ammunition for the Administration’s political opponents.

(3)  The Legislative Theory: This theory has the agencies postponing the release of the Guidance as a way of staving off the possibility that the FCPA reform effort being led by the U.S. Chamber of Commerce and other constituencies could be resurrected during the current congressional term.  There was some evidence this past year that, as a result of the Chamber-led advocacy efforts, a bipartisan consensus might be building in Congress around certain reform proposals.  Delaying the release of the Guidance, so the theory goes, makes it more difficult for reform proponents to effectively exploit the release — and what they might expect to be a disappointing reception of its contents — to help jump-start efforts to amend the statute.

So where does this leave us?  If there is any truth to “the Bureaucratic Theory,” there is a possibility that the Guidance could be released in conjunction with a written update the United States is scheduled to provide to the OECD Working Group by October 21, 2012. Otherwise, the next date one might anticipate the Guidance being unveiled is after the election, perhaps at the ACI’s flagship “National Conference on the FCPA” scheduled for November 15-16, 2012 — almost a year to the day after Assistant Attorney General Lanny Breuer first promised the FCPA Guidance at the same conference in 2011.

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Marc Alain Bohn is a contributing editor of the FCPA Blog.