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By: Thad McBride, Mark Jensen, and Cheryl Palmeri

In early August, the New York Times reported that the U.S. Securities and Exchange Commission (SEC) is investigating JPMorgan Chase related to alleged violations of the Foreign Corrupt Practices Act (FCPA) in China.  According to the article, the press had not previously reported on the investigation, and the Times knowledge of it was based on a “confidential United States government document.”  The article generated a number of similar news reports.
Continue Reading The FCPA in the News: Big Scoops, Real Fallout

By: Scott Maberry, Thad McBride, and Cheryl Palmeri

Much has been said about what is missing from the new FCPA Resource Guide (the Guide) published by the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), linked here.  Here, we consider instead the areas in which – true to its name – the Guide offers some helpful guidance.  Specifically, based on our experience of representing companies and individuals before the DOJ and SEC, this article describes four areas in which the Guide taught us something new or called into question what we thought we knew about the FCPA.
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Continue Reading What’s In the New FCPA Resource Guide: Some Welcome Clarity and Unexpected Muddling

By: Mark Jensen

Notwithstanding our overall approval of the FCPA Resource Guide (the Guide) issued by the Department of Justice (DOJ) and Securities & Exchange Commission (SEC) earlier this month, we are certainly not above a bit of criticism.

To that end, those who have investigated and settled FCPA cases after choosing to cooperate with the government will be familiar with the instruction to do “homework” following a meeting.  The direction generally requires a deeper dive into specific facts or issues identified by the DOJ and/or SEC.  While directed by the government, the homework instruction nonetheless allows the investigation target a lot of leeway about how to get the homework done.

The same approach infuses the Guide.…
Continue Reading What’s Not in the New FCPA Resource Guide, or Why Doing Your FCPA Homework is Still a Good Idea

By: Thad McBride and Cheryl Palmeri

While the FCPA world – and this blog – has been abuzz thanks to the new FCPA Guide, on a relatively mundane note, the U.S. Department of Justice (DOJ) also recently issued two Opinion Procedure Releases (OPRs) with respect to whether the DOJ would take enforcement action against particular conduct.  The OPRs, the only two the DOJ has released thus far this year, contemplated two distinct issues under the FCPA: (i) the definition of “foreign official,”[1] and (ii) the application of the “reasonable and bona fide expenditure[s]” affirmative defense.[2]  Although both OPRs concluded by saying the DOJ would not take enforcement action under the facts presented, each OPR is only as good as those precise facts; in other words, U.S. companies may find it difficult to apply these releases to their own compliance issues. …
Continue Reading Smaller FCPA Story But We’re Sure You’re Following It: DOJ Issues New Opinion Procedure Releases