To Our Clients and Friends:

Debevoise & Plimpton LLP partner and former federal judge and United States Attorney General Michael B. Mukasey recently testified before Congress in support of amending the Foreign Corrupt Practices Act (“FCPA”) to provide greater clarity and certainty to businesses that are trying to comply with the requirements of the FCPA. At a hearing held on June 14, 2011, by the Crime, Terrorism and Homeland Security Subcommittee of the Judiciary Committee of the U.S. House of Representatives, Judge Mukasey appeared as a witness on behalf of the U.S. Chamber Institute for Legal Reform. In his testimony, Judge Mukasey recommended six revisions to the statute: 

• adding a compliance defense similar to that provided by the U.K. Bribery Act; 
• clarifying the meaning of “foreign official” and “instrumentality”; 
• improving the procedures for guidance and advisory opinions from the Department of Justice and Securities and Exchange Commission; 
• limiting a company’s criminal liability for the prior actions of a company it has acquired; 
• adding a “willfulness” requirement for corporate criminal liability; and 
• limiting a company’s liability for acts of a subsidiary not known to the parent.

Judge Mukasey emphasized that these reforms will reinforce incentives for companies to implement and enforce strong compliance programs, add clarity to areas of the FCPA that currently are subject to minimal judicial oversight and vast enforcement discretion by the U.S. government, and reduce barriers to U.S. businesses seeking to sell their goods and services in foreign markets.

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Below is a copy of Judge Mukasey’s written testimony for the hearing. If you have any questions, please feel free to contact us.