Perspectives

New FCPA resource guide

Ten things for legal and compliance officers to consider

​Is the new Foreign Corrupt Practices Act (FCPA) Resource Guide (the “Guide”) from the US Department of Justice (DOJ) and US Securities and Exchange Commission (SEC) really new or just a compilation of existing material? Are there areas of emphasis that merit particular attention on the part of companies? Should companies be considering making further enhancements to their FCPA compliance programs as a result of the new Guide or are existing programs likely to be sufficient?

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Ten things for legal and compliance officers to consider and related recommended actions

With insights from guest commentators from Barrick Gold Corporation, Ford Motor Companyand Zimmer Holdings, Inc., as well as Deloitte FCPA Consulting specialists, this article identifies 10 key takeaways from the Guide that may help legal and compliance officers obtain executive support and drive continued, appropriate enhancements to their FCPA/anti-corruption compliance programs.

Ten things for legal and compliance officers to consider:
  • The most critical way to defend against FCPA exposure is a pre-existing compliance  program that is risk tailored and risk based
  • In the eyes of a regulator, the tone at the middle and tone at the bottom of a company will define the effectiveness of the tone at the top
  • FCPA compliance is the responsibility of a senior executive who must work to ensure adequate staffing and resources
  • Third party compliance is essential, must be risk based, and must include purposeful and intelligently designed auditing and monitoring
  • Controlled subsidiaries, affiliates and joint ventures must be taken into account in FCPA compliance
  • Even non-controlled affiliates, joint ventures, distributors and dealers should be included in the risk assessment and compliance plan
  • Financially immaterial transactions and payments may give rise to material liability, reputational harm, and management distraction
  • The ultimate test for an FCPA compliance program is “Does it work?” and companies must be prepared to prove that it does
  • Privately held companies should be on notice that they also have FCPA risk exposure
  • The U.S. government will continue to apply expansive jurisdictional concepts in order to enforce the provisions of the FCPA globally

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