Foreign Corrupt Practices Act (FCPA)

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Enacted in 1977, the Foreign Corrupt Practices Act (FCPA) makes it illegal for U.S. citizens, U.S. companies and certain foreign companies to bribe a foreign government official in order to obtain or retain business. However, despite the law’s good intentions, the government’s recent FCPA enforcement practices have created major uncertainty for American businesses and highlighted the need for reforms. Read More...

Since the FCPA was enacted, trade’s importance to the U.S. economy (as a percentage of GDP) has grown more than fifty percent, and exports of U.S. goods exceeded $2 trillion in 2012. At the same time, foreign governments have increasingly enmeshed themselves in private businesses. 

Unfortunately, the FCPA has not evolved to reflect these changes in the global economy – creating unprecedented uncertainty for American businesses selling goods and services overseas. They are now exposed to civil and criminal penalties for conduct that is, in many cases, beyond their control and knowledge.

For example, when an employee of an American company takes an employee of a company partially owned by the Chinese government to lunch or pays for his cab ride, does that constitute an FCPA violation? And what happens when a rogue employee knowingly violates a company’s internal FCPA compliance system? Should the company be held liable too?

To help address these and other questions, the Department of Justice (DOJ) and the Securities and Exchange Commission released unprecedented joint guidance on their enforcement of the FCPA in November 2012. While this guidance was an important first step towards providing businesses with much-needed clarity and certainty, more reforms are needed. These include ensuring that U.S. companies implementing robust anti-bribery programs are not punished for the actions of rogue employees. The government should also provide a clearer definition of who constitutes a “foreign official” under the statute. Even more recently, the DOJ released in late 2017 additional guidance and changes to the U.S. Attorney's Manual indicating that the Department will presumptively decline to prosecute FCPA cases against companies that voluntarily disclose potential misconduct, fully cooperate with government investigators, and implement timely and appropriate remediation measures.

Suggested Resources

Research
  • ILR Research Review - Fall 2017

    ILR Research Review - Fall 2017

    November 30, 2017

    This special double-issue of the ILR Research Review features a wealth of insight and analysis on the world's rapidly changing litigation environment. The research contained in this issue targets exploitative litigation at home and abroad, examining numerous developments ranging from hyper-aggressive trial lawyer advertising in the U.S. to the imminent expansion of class actions in Europe. Read More

  • DOJ's New Threshold for

    DOJ's New Threshold for "Cooperation": Challenges Posed by the Yates Memo and USAM Revisions

    May 26, 2016

    This paper examines the recent release of the Yates Memo, changes to the U.S. Attorneys' Manual (USAM), and the complicated landscape for business compliance and cooperation. Read More

Additional Resources

All Results for Foreign Corrupt Practices Act (FCPA)

  1. In the News Today - August 19, 2015

    August 19, 2015 | News and Blog

    In a case that "essentially establishes that 'valuable student internships' are covered" under the Foreign Corrupt Practices Act (FCPA), the U.S. Securities and Exchange Commission reached a $14.8 million settlement with Bank of New York Mellon Corp. over accusations the bank provided internships to relatives of foreign officials in violation of the FCPA. The bank has not admitted any wrongdoing. (Wall Street Journal)... Read More

  2. AG Nominee Lynch Forced to Respond to ILR's FCPA Proposals

    February 18, 2015 | News and Blog

    In a written exchange with U.S. Senators, U.S. Attorney General nominee Loretta Lynch was forced to counter the views expressed by the now-chief of DoJ's Criminal Division's Fraud Section, Andrew Weissman, in a 2010 paper he authored for the U.S. Chamber Institute for Legal Reform.... Read More

  3. The ILR Research Review - Winter 2014

    December 18, 2014 | Research

    This edition of the ILR Research Review offers valuable insights from the latest of ILR's research on perpetual prosecution, the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), social media, and transnational litigation.... Read More

  4. Federal Cases from Foreign Places: How the Supreme Court Has Limited Foreign Disputes From Flooding U.S. Courts

    October 21, 2014 | Research

    This collection of essays examines the shifting legal landscape of federal claims by foreign plaintiffs in the federal courts and focuses on the most common statutes invoked by foreign plaintiffs, as well as the threshold issues of personal jurisdiction and pleading standards that govern such suits.... Read More

  5. In The News Today - October 7, 2014

    October 07, 2014 | News and Blog

    The U.S. Supreme Court has refused to consider an appeal that sought to limit the scope of the Foreign Corrupt Practices Act (FCPA) by "narrowing the law's definition of a 'foreign official.'" ... Read More

  6. In The News Today - September 22, 2014

    September 22, 2014 | News and Blog

    Companies that hire third parties to send unsolicited text messages can be liable for Telephone Consumer Protection Act violations, the Ninth Circuit held Friday in a published opinion reviving a proposed class action that blamed U.S. Navy contractor Campbell-Ewald Co. for recruitment messages cellphone users received.... Read More

  7. In The News Today - August 29, 2014

    August 29, 2014 | News and Blog

    A Pennsylvania appellate court affirmed a judgment in favor of Ford Motor Co. and BorgWarner Corp. in a suit that failed to properly attribute employees' alleged asbestos exposure to the companies.... Read More

  8. Exposing Corruption in the Chevron Amazon Case

    August 20, 2014 | News and Blog

    On March 4, 2014, the U.S. District Court for the Southern District of New York ruled that a $9.5 billion Ecuadorian judgment against Chevron Corporation for alleged contamination was the product of fraud and racketeering activity, finding it unenforceable. ... Read More

  9. In The News Today - August 12, 2014

    August 12, 2014 | News and Blog

    The U.S. Supreme Court may hear a case seeking clarity on a key term in the Foreign Corrupt Practices Act (FCPA). ... Read More

  10. In The News Today - May 19, 2014

    May 19, 2014 | News and Blog

    "Losing a shareholder lawsuit to a company could soon become more expensive," writes Liz Hoffman of The Wall Street Journal. Hoffman reports on the Delaware Supreme Court's recent decision to uphold, "a corporate bylaw that requires the losing party in litigation against the company to pay the winner's legal fees."... Read More