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

  • 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. 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

  2. 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

  3. In the News Today - October 18, 2016

    October 18, 2016 | News and Blog

    In what Bob Conlin of NAVEX Global writes is "a remarkable affirmation of the value of robust compliance and due-diligence programs," the Securities and Exchange Commission (SEC) last month announced that it would not prosecute Harris Corporation for potential Foreign Corrupt Practices Act (FCPA) violations, even though the agency charged an officer of the company over FCPA allegations related to Chinese officials. ... Read More

  4. In the News Today - October 12, 2016

    October 12, 2016 | News and Blog

    The D.C. Circuit's ruling that the Consumer Financial Protection Bureau's (CFPB) structure is unconstitutional "is a triumph for democratic accountability and thus individual liberty as envisioned by America's founders," writes the Wall Street Journal editorial board.... Read More

  5. In the News Today - July 25, 2016

    July 25, 2016 | News and Blog

    The Minnesota Supreme Court's Advisory Committee on the Rules of Evidence is studying whether to shift from the Frye-Mack Standard for expert testimony to the Daubert Standard. ... Read More

  6. U.S. Chamber Comments on Justice Department's FCPA Enforcement Pilot Program

    April 06, 2016 | Press Release

    ... Read More

  7. In the News Today - January 12, 2016

    January 12, 2016 | News and Blog

    DOJ's FCPA Unit Hires more Attorneys: U.S. Assistant Attorney General for the Criminal Division Leslie Caldwell announced in a speech that the U.S. Department of Justice was "preparing to add 10 new prosecutors to the Fraud Section's Foreign Corrupt Practices Act Unit, increasing its size by 50 percent." (Inside Counsel)... Read More

  8. In the News Today - November 19, 2015

    November 19, 2015 | News and Blog

    Prosecution Rests its Case in Sheldon Silver Trial: Throughout the trial of the indicted former New York Assembly Speaker, prosecutors "focused on advancing the notion that Mr. Silver systematically masked any involvement he had with asbestos litigation in an effort to obscure one of the alleged schemes: that he was receiving fees from a law firm for referring patients recommended to him by a doctor in exchange for directing state grants to that doctor's field of research." (Wall Street Journal)... Read More

  9. In the News Today - November 18, 2015

    November 18, 2015 | News and Blog

    Editorial Hits Sheldon Silver for 'Lying' to Editorial Board About True Nature of His Legal Work: "Actually, he had siphoned state funds out of a secret account, given that money to a doctor who treated mesothelioma patients, persuaded the doctor to refer the patients to Weitz & Luxenberg and bagged referral fees. Oh, and Silver had never met any of the clients and did no work on their cases." (New York Daily News)... Read More

  10. In the News Today - November 13, 2015

    November 13, 2015 | News and Blog

    DoJ Considering Policy Shift in FCPA Enforcement? The U.S. Justice Department is "considering a new policy that gives companies a clearer idea of what to expect when self-reporting foreign corruption violations to the government." Said ILR's Harold Kim: "The business community is situated to help cut off corruption at its inception. Trying to get more cooperation upfront is the best way of enforcing anti-corruption laws." This article also highlights ILR's 2010 FCPA reform report, "Restoring Balance." (Wall Street Journal)... Read More