The Department of Justice (DOJ) has provided updated guidance for prosecutors evaluating corporate compliance programs’ adherence to Foreign Corrupt Practices Act (FCPA). “Okay,” you might be saying to yourself. “I know that already, the DOJ’s new guidance is very helpful.”
But it could be even more beneficial according to a recent FCPA Blog that points the DOJ issued the guidance with prosecutors in mind, not the corporations expected to be in compliance. The DOJ left out much of the information corporations want to know according to the author, like if there will be assurances or incentives for those who implement effective compliance programs.
Under the UK Bribery Act, a corporation that has in place “adequate procedures designed to prevent persons associated with [the corporation] from undertaking such conduct,” can rely on the Act’s adequate procedures defense. This language in the regulation eliminates the potentially disastrous monetary sanctions associated with non-compliance.
If the DOJ were to introduce an affirmative defense of adequate compliance procedures, the author argues, the regulator and corporations both stand to benefit. Corporations will place a greater emphasis on implementing effective compliance program, helping to eradicate international corruption. He points to a recent case in the UK where “adequate procedures” were the litmus test in determining a defendant’s compliance effort,