Foreign Corrupt Practices Act (FCPA)

The Foreign Corrupt Practices Act (“FCPA”) is a federal law that prohibits bribing foreign government officials. Its language is sweeping, prohibiting direct or indirect payments, offers or promises to provide anything of value, with the intent to influence any act of the foreign official, secure an improper advantage or make it easier to do or obtain business. Its scope is equally broad, and applies to all companies registered on U.S. securities exchanges; all other U.S. companies; all foreign companies while acting in the U.S.; U.S. citizens, nationals and residents; officers, directors, employees and agents of covered companies; and any other person acting in the U.S. Even the FCPA’s definition of a “foreign official” is sweeping, and can include individuals and intermediaries who, on first glance, might appear to be private individuals. The FCPA also requires covered companies to keep accurate records of transactions and the handling of assets, and maintain a system of internal accounting controls to monitor transactions and insure they are properly recorded.

The FCPA is jointly enforced by the U.S. Department of Justice and the Securities and Exchange Commission. Prosecutions and civil actions often involve the use of whistleblowers, and investigations often result in negotiated settlements that involve fines in the tens or hundreds of millions of dollars for large companies. In recent years, the government has also expanded its focus to pursue FCPA claims against individuals, frequently seeking lengthy prison sentences.

Kauffman Kilberg LLC attorneys have experience advising companies and executives on the FCPA and various risks associated with overseas business practices. In addition, we have counseled companies on related bribery statutes, including state bribery laws and other international bribery standards like the similarly crafted U.K. Bribery Act.