By Aruna Viswanatha
WASHINGTON, Nov 14 (Reuters) - 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 &
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.
CAB RIDES DON'T COUNT
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.
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