WASHINGTON Nov 14 The U.S. Justice Department
has declined to prosecute several dozen foreign bribery schemes
it has come across in the past two years, according to a
document the department released on Wednesday.
It did not charge violations in instances when the company
disclosed the conduct to authorities, fired responsible
employees and took steps to improve its compliance program, the
Business groups have longed urged the department to release
information about those cases involving Foreign Corrupt
Practices Act violations it decides not to charge, a step
prosecutors have resisted doing in the past.
Such information, industry lawyers have said, could help
explain to companies the benefits of voluntarily informing the
DOJ of potential misconduct.
In a new resource guide published by the Justice Department
and the U.S. Securities and Exchange Commission about how they
enforce the law, which bars U.S.-linked firms from bribing
officials of foreign governments, the department provided
specific examples of cases it has declined to charge in recent
The agencies have stepped up enforcement of the law since
the mid-2000s, extracting record penalties from companies,
ranging up to hundreds of millions of dollars. The law has
tripped up major companies from Avon to Wal-Mart, which are
facing investigations into whether they bribed officials in
China, Mexico and elsewhere.
Most of the examples in the guide of declined prosecutions
involved extensive cooperation 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.
Last year the head of the DOJ's criminal division, Lanny
Breuer, announced the department would provide "detailed new
guidance" on the law's criminal and civil enforcement
provisions, in part an answer to a recommendation from
The announcement also helped to delay interest in Congress
in amending the statute. Hearings were held after the U.S.
Chamber of Commerce and others argued that ambiguity in the
1970s-era law had hurt American businesses.
In what the agencies described as an "unprecedented
undertaking," the 120-page guide 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.
Such cabs rides came up at a congressional hearing when
industry representatives said companies worried about providing
taxi fare to government officials in case it would be considered
a violation of the FCPA.
The guide also provided the examples of a company inviting
dozens of current and prospective customers out for drinks and
covering the bar tab, and a company presenting a moderate
crystal vase as a wedding gift to the general manager of a
state-owned electricity commission that is a customer of the
Both scenarios would not fall under the law, it said. The
FCPA "was not designed to prohibit all forms of hospitality to
foreign officials," the agencies said.