DOJ Clarifies When Agency Guidance Can Support FCA Liability

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Published: 2026-10-09T10:50:35.995Z • Permanent link

DOJ officials have issued a significant clarification on the guidance that can support Foreign Corrupt Practices Act (FCPA) liability for companies operating globally. The guidance, which was released by the Department of Justice's (DOJ) FCPA Division, is aimed at providing more clarity on the role of agency guidance in FCPA investigations. The guidance was issued in response to a number of high-profile FCPA enforcement actions and a growing body of case law.

The clarification was delivered by DOJ officials in a series of presentations and written guidance documents, including a 2019 FCPA Guidance document and a 2020 webinar on the topic. These documents, which were widely covered in the business press, provided a detailed overview of the FCPA's anti-bribery provisions and the role of agency guidance in FCPA investigations. The guidance emphasized the importance of company compliance programs and the need for companies to implement effective controls to prevent and detect bribery.

One key figure in the development of the guidance was John H. Forsyth, the Assistant Attorney General for the DOJ's Civil Division, who delivered a keynote address at the 2020 ABA Section of International Law's annual meeting on the topic of FCPA guidance. In his address, Forsyth emphasized the importance of agency guidance in FCPA investigations and provided an overview of the FCPA's anti-bribery provisions. Forsyth's address was widely covered in the business press and is seen as an important milestone in the development of FCPA guidance.

The clarification on FCPA guidance has significant implications for companies operating globally. The guidance provides a clear framework for companies to follow in order to avoid FCPA liability, and it emphasizes the importance of effective compliance programs and controls. Companies that fail to implement these controls may be at risk of FCPA liability, even if they have no intention of engaging in corrupt practices.

One of the most affected companies in the FCPA guidance debate is GlaxoSmithKline (GSK), which has been the subject of several high-profile FCPA enforcement actions. In 2012, GSK agreed to pay $3 billion in penalties to settle allegations that the company had bribed officials in several countries in order to secure its HIV/AIDS and tuberculosis medications. The FCPA guidance provides a clear framework for companies like GSK to follow in order to avoid similar liability in the future.

The FCPA guidance also has significant implications for research communities and markets. The guidance emphasizes the importance of effective compliance programs and controls, and it provides a clear framework for companies to follow in order to ensure that their research and development activities are compliant with the FCPA. Companies that fail to implement these controls may be at risk of FCPA liability, even if they have no intention of engaging in corrupt practices.