Last Updated on: 1st August 2023, 04:16 pm

The United States passed the Foreign Corrupt Practices Act in 1977 with the intention of combating corruption between U.S. citizens or entities and foreign officials. This act was followed by a series of other anti-bribery laws, and it was later amended through the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The penalties associated with a conviction under the Foreign Corrupt Practices Act are severe, but there are effective defense strategies that your attorney could use to address the matter. What should you know about violations of the Foreign Corrupt Practices Act?

Understanding the Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act specifically applies to individuals, U.S. businesses, foreign businesses that conduct business in the U.S. and foreign businesses listed on the national stock exchange. It directly prohibits the bribery of a foreign official specifically for the purpose of retaining or obtaining business in a foreign land. It covers cash payments, gifts of value and promises of cash or gifts as a means of influence to specific individuals and entities. These include government officials, party officials, political candidates, political parties and others that may have influential power in the matter.

More than that, it prohibits bribes that may be made through third parties. Because of this nuance of the law, it specifically covers corruption and bribery related to money laundering. The laws specifically define who the issuer of the bribe is, the jurisdiction of the law, the impact on the United States and accounting documentation. Notably, companies are required under the provision to have an oversight system in place to prevent and identify corruption internally. Through this measure, the company may be held responsible for the actions of an employee.

Penalties for a Violation of the Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act is enforced by the Department of Justice and the Securities and Exchange Commission. Violators of the act may face both civil and criminal penalties. Individuals who violate the act may face up to five years in prison and a fine of up to $100,000. This extends to stockholders, officers, employees and others. Businesses may also be fined up to $2 million for a violation.

Both individuals and businesses may face separate civil penalties as well. The civil fine includes a $10,000 base amount plus an additional amount that ranges between $5,000 and $500,000. This additional amount can be equal to the amount of the individual’s or entity’s gain. In addition to these penalties, the person or the business may be forbidden from doing any business with the government in the future.

Defense Strategies for Foreign Corrupt Practices Charges
Several factors must be present in order for a violation to occur. First, the act must be corrupt, or it must be intended to misuse or abuse the official’s position. Second, a guilty party must have explicit knowledge that his or her willful actions are prohibited. Third, an item of value or a promise must be conveyed to a foreign official. Finally, there is a 5-year statute of limitations for this crime, so the bribe must have been made relatively recently.

With these factors in mind, a criminal defense attorney may adopt strategies to poke holes in one or several of these factors. There are also affirmative defense strategies. For example, the defense attorney may argue that the payment was lawfully made under the law of the foreign country. This is known as the local law defense. Another strategy is to prove that the money was conveyed through a contractual obligation for a legitimate business purpose. For these defenses, however, the defendant carries the burden of proof. Because of the unique nature of this white-collar crime and the long-term effects it can have on your finances and your professional life, an effective defense prepared by a skilled attorney is essential.

Request a Legal Consultation Today
Have you recently been charged with a violation of the Foreign Corrupt Practices Act? The ramifications of a conviction for these charges can be significant, so you understandably need to start building your defense as soon as possible. It is never too early to involve your defense lawyer in the matter. With this in mind, you should schedule a legal consultation soon even if charges have not yet been filed. For a consultation, contact our law firm today.

International trade is the backbone of the economy, and it’s one of the most important things for many US businesses. But it also comes with a fair share of risk if you aren’t careful. People who fail to comply with regulations may be subject to administrative, criminal, or civil proceedings. And if you’re found to be in violation of the Foreign Corrupt Practices Act or other statutes related to international trade, you may find yourself facing criminal charges of corruption.

The FCPA is an act that allows federal prosecutors to target corporations and individuals regarding many different circumstances. Most litigation occurs because an individual or company is accused of corruption with their foreign government contracts. But it’s also possible for companies to be charged with corruption based on how they import and export goods.

Some individuals may use bribery toward US officials, which can lead to criminal proceedings. Even if a company isn’t involved directly in the corruption or bribery, they may still be subject to prosecution if they deal with a foreign entity who is corrupt. This is part of the reason why it’s vital to do due diligence before settling on an international supplier or distributor.

What Risks Does the FCPA Pose?

The Foreign Corrupt Practices Act covers every legal “person” in the US, meaning business entities and individuals. It also applies to some foreign companies that are traded publicly on the stock exchange. If any conduct involves the transport of goods across borders, along with a bribe or an attempt to influence a foreign official, it can be criminally prosecuted under the FCPA.

The initial inquiry may lead to charges. If a targeted entity is convicted, they may face exorbitant fines: 5 million dollars for an individual, and 25 million dollars for a business. On top of that, individuals may be subject to a maximum of 20 years in federal prison. FCPA prosecutions can also include consequences like injunctions, disgorgements, forfeitures, and even the debarment from doing business with governments.

There are a number of different ways that a company might open itself up to criminal prosecution due to its import and export capabilities. The charges may be related to one of two categories: internally interacting with foreign officials, or having relationships to third parties that interact with those officials.

Internal Foreign Interactions

This is one of the most direct ways that a company can find itself in trouble. It occurs when personnel within the company interact with the foreign officials. When cases are related to importing and exporting, there may be multiple people involved at different levels. Every foreign interaction leads to the potential for corruption.

Some corruption is intentional, such as soliciting a bribe. But employees may also unintentionally violate FCPA, especially if the company doesn’t have anti-corruption training to explain what to watch out for.

The risk is made even higher by the fact that foreign officials are often underpaid, while company executives tend to have much higher salaries. Certain officials might be very susceptible to an executive’s influence. They may ask for benefits and inflated payments that the other person does not realize are illegal bribes.

Third Party Relationships

Sometimes your company might not be involved in any corrupt dealings at all. But it may be involved with a third party that engages in corrupt dealings with foreign officials on the company’s behalf. Corruption might occur in customs brokers, consulting firms, freight forwarders, import agents, and export agents. If the company expects the third party to handle their foreign interactions, and the third party engages in bribery, the company can be held responsible.

There are ways that companies can distance themselves from third parties in their contracts. However, the language won’t typically be strong enough to prevent the government from pursuing criminal prosecutions.

Other Risks for Prosecution

Some other statutes also come with prosecution risks. You may be charged with a crime if you influence or bribe public officials, including customs and border officials. Conviction can lead to prison sentences of 15 years.

You may also be charged with conspiring to defraud the US if no successful bribe exchanged hands, but there was a plan for one to do so.