US gives firms hints on avoiding foreign bribery charges


Posted at Nov 15 2012 09:08 AM | Updated as of Nov 15 2012 05:08 PM

WASHINGTON - U.S. officials have decided not to prosecute companies accused of bribing officials in foreign countries when the companies disclosed the conduct to authorities, fired responsible employees and took steps to improve compliance with the law, according to a government document released on Wednesday.

The document noted that the Justice Department declined to prosecute several dozen foreign bribery schemes it has come across in the past two years, and spelled out some of the reasons why. Business groups have long urged the department to release information about those cases.

The resource guide, published by the Justice Department and the U.S. Securities and Exchange Commission, explains how they enforce the Foreign Corrupt Practices Act, which bars U.S.-linked firms from bribing officials of foreign governments.

Areas covered include whether payments made under duress fall under the law and what kind of due diligence a company should perform on an acquisition target.

The document was aimed at helping businesses determine which compliance risks to focus on, Lanny Breuer, head of the DOJ's criminal division, said at a briefing.

In the past, prosecutors have resisted revealing too much about cases where they decide not to press charges. But last year, Breuer announced the department would provide "detailed new guidance" on the law's criminal and civil enforcement provisions, as international authorities had recommended.

Some in Congress had suggested amending the statute. Hearings were held after the U.S. Chamber of Commerce and other groups complained that the 1970s-era law was too ambiguous.

Senator Chris Coons, a Delaware Democrat who has considered legislation, plans to meet with DOJ, global anti-corruption groups and U.S. businesses to assess whether the new guidance is clear enough, his spokesman Ian Koski said.

Since the mid-2000s, the U.S. government has stepped up enforcement of the law, extracting record penalties up to hundreds of millions of dollars. Major companies from Avon Products Inc to Wal-Mart Stores Inc face investigations into whether they bribed officials in China, Mexico and elsewhere.

Industry lawyers, who have urged the government to explain to companies the benefits of voluntarily informing the DOJ of potential misconduct, welcomed the guide.

The document spelled out positions defense lawyers believed the department held, but had no evidence of to show to clients, said Kathryn Atkinson, an FCPA lawyer at the firm Miller & Chevalier.

The Chamber of Commerce said in a statement that although "guidance by definition can never provide the same certainty as an affirmative statute," it hoped the guide would "help companies seeking to comply with the law" and prosecutors too.

Some lawyers involved in such cases said the document was not detailed enough.

"To the extent to which many of us were expecting that this was going to be guidance, as opposed to a resource guide, it doesn't necessarily live up to expectations," said Christopher Garcia, a former federal prosecutor who is now a partner at Weil, Gotshal & Manges.


Most examples in the guide of declined prosecutions involved companies that cooperated extensively with authorities.

In one case, a subsidiary of a U.S. public company retained a construction company that paid "relatively small bribes" to foreign building code inspectors.

When the company's compliance department discovered the payments, it ended the conduct, fired the construction company and the law firm that approved the bribes and fired or disciplined the employees involved.

It also conducted a "thorough internal investigation," disclosed the findings to U.S. authorities and reorganized to appoint a new compliance officer focused on anti-corruption, improved its training program and undertook a review of the company's international third-party relationships.


The 120-page guide also provides hypothetical examples to address questions about who the law covers, how it considers gifts or travel expenses and issues involving a foreign company later acquired by another one subject to the FCPA.

Since the law requires a corrupt intent by the entity under investigation, "it is difficult to envision any scenario in which the provision of cups of coffee, taxi fare or company promotional items of nominal value would ever evidence corrupt intent," the agencies said.

Cab rides came up at a congressional hearing when industry representatives said companies worried that providing taxi fare to government officials would be considered a violation.

The FCPA "was not designed to prohibit all forms of hospitality to foreign officials," the agencies said.

For instance, the guide also said the law would not prohibit a company from inviting dozens of current and prospective customers out for drinks and covering the bar tab, or presenting a moderate crystal vase as a wedding gift to the general manager of a state-owned electricity commission that is a customer.