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 - January 5, 2018

    January 05, 2018 | News

    What In-House Counsel Must Know About the Revised Corporate Enforcement Policy; Intel Hit With Consumer Class Action Over Security Issue... Read More

  2. In the News Today - November 17, 2017

    November 17, 2017 | News

    U.S. Foreign Bribery Cases Fast-Tracked Due to Statute of Limitations Rule - SEC Enforcement Chief; Trump Considers Naming Mulvaney Interim CFPB Director... Read More

  3. In the News Today - June 12, 2017

    June 12, 2017 | News and Blog

    Prospects for significant changes to the Foreign Corrupt Practices Act (FCPA) are low, but some changes may be possible with a pro-business Congress and president. The most likely change would be the introduction of an affirmative defense for effective anticorruption compliance measures. ... Read More

  4. In the News Today - May 30, 2017

    May 30, 2017 | News and Blog

    A trial set for this week "sets the stage for a judge to consider unique questions about the scope of the Foreign Corrupt Practices Act (FCPA) and other U.S. bribery laws." ... Read More

  5. Foreign Corrupt Practices Act Has "No Shortage of Challenges"

    May 17, 2017 | News and Blog

    The Foreign Corrupt Practices Act (FCPA) turns 40 this year and the "ambitious" attempt to deter corruption in international business dealings is "reviled by more than a few" writes Forbes.... Read More

  6. In the News Today - April 25, 2017

    April 25, 2017 | News and Blog

    Yesterday marks the start of the first bellwether trial over blood thinner Xarelto in New Orleans. Xarelto has "become the poster child for critics of unbridled plaintiffs' attorney advertising" because these ads invite meritless cases and the dire warnings put patients at risk by convincing them to stop taking their medications.... Read More

  7. In the News Today - April 21, 2017

    April 21, 2017 | News and Blog

    Trevor McFadden, Acting Principal Deputy Assistant Attorney General for the Department of Justice Criminal Division, said that prosecutors are "committed to wrapping up old Foreign Corrupt Practices Act cases and investigating new ones more quickly." ... Read More

  8. Largest FCPA Case in History Ends with $2.6 Billion Fine

    April 18, 2017 | News and Blog

    U.S. District Judge Raymond Dearie ordered Odebrecht, a Brazilian engineering company, to pay $2.6 billion to the governments of Brazil, the U.S., and Switzerland for violations of the Foreign Corrupt Practices Act (FCPA).... Read More

  9. Number of DOJ Declinations Sees "Notable Uptick" Following FCPA Pilot Program

    April 11, 2017 | News and Blog

    James Tillen and Marc Bohn from law firm Miller & Chevalier found that the Department of Justice's (DOJ) one-year enforcement "pilot program" aimed at promoting greater accountability for those who violate the U.S. Foreign Corrupt Practices Act has been accompanied by "a notable uptick in declinations by the department."... Read More

  10. In the News Today - October 27, 2016

    October 27, 2016 | News and Blog

    Lanny Breuer, former head of the U.S. Department of Justice's Criminal Division, said the DOJ's FCPA pilot programs makes "‘an extraordinary request' by mandating that companies seeking to have the government decline to bring a corruption case must ‘deconflict' and halt their own internal investigations of potential violations." ... Read More