The DOJ and the SEC recently published a Second Edition of their joint Resource Guide to the US Foreign Corrupt Practices Act. While the Second Edition does not promulgate any new law or policy, it is a useful refresher for practitioners on the significant FCPA cases and developments in the past eight years since the first edition was published. The Resource Guide once again provides a current and comprehensive overview of the core US enforcement agencies’ views on the statute for companies and practitioners. This article highlights key changes in the Second Edition of the Resource Guide.

While the SEC may seek disgorgement, it may not, under the guise of disgorgement, seek a remedy beyond traditional equitable principles

In a much anticipated ruling, the United States Supreme Court held today in Liu v. Securities and Exchange Commission that a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for “the benefit of investors” is “equitable relief” permissible under 15 U. S. C. §78u(d)(5).[1] In reaching its decision, the Court analyzed categories of relief “typically available in equity,” concluding that “equity practice [has] long authorized courts to strip wrongdoers of their ill-gotten gains.”[2]  However, in vacating the decision of the Ninth Circuit Court of Appeals and remanding for further proceedings, the Court left open the questions of whether disgorgement awards not paid to victims can be consistent with the statutory requirement that such a remedy be imposed “for the benefit of investors,” and whether concepts of equity contemplate any circumstance under which a joint-and-several award of disgorgement would be appropriate.