BRIBERY LAW: GUIDANCE FOR "DOs" AND "DON'Ts" FROM THE FEDERAL GOVERNMENT

This information is presented as a public service by the national law firm of Charles Jerome Ware, P.A., Attorney and Counsellors: "Here to make a difference."

Wednesday, November 14th, 2012, Washington, D.C.

The Federal Government today, by way of the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), issued its long-awaited 120-page document providing guidance about which practices might place American corporations in violation of the far-reaching Foreign Corrupt Practices Act of 1977 ("FCPA") 15 U.S.C. §§ 78 dd-1, et seq., --- America's premier antibribery law.

The new SEC and DOJ document, titled "A Resource Guide to the U.S. Foreign Corrupt Practices Act", seeks to provide a detailed analysis of the U.S. Foreign Corrupt Practices Act (FCPA) and closely examines the DOJ and SEC approaches to FCPA enforcement.

The new guide is available online at: www.sec.gov/spotlight/fcpa.shtml or www.justice.gov/criminal/fraud/fcpa.

The new FCPA guide attempts to address concerns and complaints from American companies that ambiguities in the FCPA forces them to avoid doing business in s-called "high-risk" countries and spend millions of dollars investigations themselves to insure that they are in compliance.

As expected, for the most part, the new guide simply urges the use of commonsense. For example:

-Buying a cup of coffee for an official to seal a business deal overseas is probably insufficient evidence of a corrupt intent; however, funding a $15,000 birthday trip for a government official from a foreign country that includes visits to wineries and dinners probably is sufficient evidence to establish a corrupt intent.

-Paying a modest taxi fare for an official to assist in your business is probably acceptable; but spending $20,000 on sightseeing, dinners, drinks and other entertainment for a government official is probably unacceptable under the FCPA guidelines.

These two examples above, should be no surprises to the reader.

The 1988 Trade Act directed the Attorney General to provide guidance concerning the Department of Justice's enforcement policy with respect to the Foreign Corrupt Practices Act of 1977 ("FCPA"), 15 U.S.C. §§ 78dd-1, et seq., to potential exporters and small businesses that are unable to obtain specialized counsel on issues related to the FCPA. The guidance is limited to responses to requests under the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure (described below at p. 10) and to general explanations of compliance responsibilities and potential liabilities under the FCPA. This brochure constitutes the Department of Justice's general explanation of the FCPA.

U.S. firms seeking to do business in foreign markets must be familiar with the FCPA. In general, the FCPA prohibits corrupt payments to foreign officials for the purpose of obtaining or keeping business. In addition, other statutes such as the mail and wire fraud statutes, 18 U.S.C. § 1341, 1343, and the Travel Act, 18 U.S.C. § 1952, which provides for federal prosecution of violations of state commercial bribery statutes, may also apply to such conduct.

[www.justice.gov/criminal/fraud/fcpa; online.wsj.com/article/ "FCPAMcChesney, Univ. of Harvard Press: Cambridge, Mass. (1997); "Bribes", John Thomas Noonan, MacMillan: New York (1984); "Bribery Law Dos and Don'ts", Palazzolo and Matthews, The Wall Street Jounral, 11/15/2012, pp. B1-2]