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Harry Cassin
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Andy Spalding
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Jessica Tillipman
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Richard L. Cassin
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Elizabeth K. Spahn
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Cody Worthington
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Julie DiMauro
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Thomas Fox
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Marc Alain Bohn
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Bill Waite
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Shruti J. Shah
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Russell A. Stamets
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Richard Bistrong
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Eric Carlson
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A closer look at the revisions to the FCPA Guide

Several articles over the past few days have reported that the DOJ and SEC are quietly revising A Resource Guide to the FCPA, the joint guidance the agencies issued on November 14, 2012, including one article that suggested these revisions occurred as recently as June of this year (see also here and here). In fact, the more substantive of the changes flagged by these articles were made on or before December 9, 2012, less than 30 days after the release of the Guide, in response to feedback practitioners provided to the agencies.

On November 16, 2012, prior to a DOJ and SEC Q&A panel at the annual ACI FCPA Conference in Washington, D.C., panel moderator Homer E. Moyer raised the joint venture-related misstatements in the newly published FCPA Guide with U.S. enforcement officials in attendance at the conference, including head of the SEC’s FCPA Unit Kara N. Brockmeyer and then-head of the DOJ’s FCPA Unit Charles E. Duross. During the subsequent panel discussion, Ms. Brockmeyer and her co-panelist Jeffrey H. Knox, Deputy Chief of the DOJ’s Fraud Section, acknowledged the editing errors and promised that the language would be promptly corrected (see Miller & Chevalier’s November 20, 2012 alert on the issuance of the guidance).  As noted, these changes (which relate to page 43 of the FCPA Guide) were effected on copies of the Guide available on the DOJ’s website by at least December 9, 2012.

The December 2012 update did not, however, include the clarifications noted in the articles linked to above involving the higher fine ranges available under Alternative Fines Act (18. U.S.C. § 3571) (which relate to page 68 of the FCPA Guide). While it is unclear exactly when these sentencing-related changes were made—based on a review of electronic copies of the FCPA Guide downloaded from the DOJ website over the past two and a half years it appears to have occurred between April 2013 and April 2014—they are somewhat less critical than the joint venture-related changes, as the meaning of the applicable sections of the Alternative Fines Act are fairly well-defined as a matter of law. The discussion over these revisions, however, makes clear that the current process for updating the FCPA Guide is opaque, making it difficult to know whether and when changes have been made. As a result, practitioners relying on the FCPA Guide would be wise to consult the current online version of the guidance posted to the DOJ’s and SEC’s respective websites. And if the DOJ and SEC plan to make any additional changes to the guidance, the agencies may want to consider providing notice of such changes and indicating on the FCPA Guide itself when the document was last revised.  

So should FCPA practitioners and other interested parties expect further changes to the FCPA Guide, as least in the near term? Probably not. The Guide has been subjected to intense scrutiny over the past two and a half years, and one would expect that any revisions or corrections the agencies were amenable to making have already been made.  When asked during a panel discussion on March 20, 2014, whether the agencies were contemplating further changes to the Guide based on feedback or suggestions they had received, Charles Cain, Deputy Chief of the SEC’s FCPA Unit, said: “I don’t expect to see a revision of the Guide anytime soon. I like to think we’ve covered that ground…. For now we will use speeches and platforms like this conference to supplement the Guide and help get issues out or address new issues. Perhaps we could release a new edition of the Guide in five to ten years.”


Marc Alain Bohn is a contributing editor of the FCPA Blog. He practices law at Miller & Chevalier, where he is an editor of the firm’s FCPA Summer Review 2015. He can be contacted here.

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