FCPA: Companies need to exercise due diligence to comply with the FCPA with guidelines that are not there and rules that are not written either

This is a great post about the level of due diligence needed for a company to comply with the FCPA. Not so much an e-discovery issue, but something contract attorneys should take note of if ever working on an FCPA matter.

From the great FCPA Blog:

"Due diligence is a common subject, so it's natural to think of it as an easy subject as well. But it's not. There's no black-letter law anywhere describing due diligence, or what type is needed for an effective compliance program under the Foreign Corrupt Practices Act, or how much should be done. Surprisingly, the FCPA itself never mentions it. The statute describes what behavior constitutes an offense, and lists a few things that don't -- facilitating payments, promotional expenses and payments allowed under the written laws of the host country. But it doesn't mention due diligence.

Where, then, does due diligence come from? As with so many aspects of compliance, the Federal Sentencing Guidelines are the fountainhead. They leave no doubt that due diligence is an essential ingredient of compliance. But even the Guidelines don't give examples, checklists, or timetables. They leave the "details" to those who know the organization best -- its directors, officers and executives. Instead of being a compliance how-to, the Guidelines describe the hallmarks of an organization whose intention is to comply. One hallmark -- you guessed it -- is due diligence. There's even some case law on the topic that's helpful."