Covered by NYDaily News. Las Vegas man accused of threatening a prominent attorney and making vile remarks.
Covered by New York Times, and other outlets. Fake heiress accused of conning the city’s wealthy, and has an HBO special being made about her.
Accused of stalking Alec Baldwin. The case garnered nationwide attention, with USAToday, NYPost, and other media outlets following it closely.
Juror who prompted calls for new Ghislaine Maxwell trial turns to lawyer who defended Anna Sorokin.
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Last Updated on: 19th October 2023, 07:36 pm
The Foreign Corrupt Practices Act (FCPA) is a important law that businesses operating internationally need to understand. Enacted in 1977, the FCPA prohibits bribery of foreign officials and requires companies to maintain accurate books and records.
This article provides an overview of the FCPA, it’s history, key provisions, defenses, penalties, and best practices for compliance. It aims to help businesses understand their responsibilities under the law.
The FCPA was enacted in 1977 after a series of corruption scandals involving major U.S. corporations. Investigations by the SEC found that companies were bribing foreign officials to secure business in countries around the world.
Some examples of the corrupt practices uncovered include:
There was public outrage over these revelations. Congress responded by passing the FCPA to halt corporate bribery and restore public confidence.
The FCPA had two main goals:
The FCPA applies to all U.S. companies, citizens, and residents. It also applies to foreign companies listed on U.S. stock exchanges. The law has extraterritorial jurisdiction, meaning it applies to bribery that occurs entirely overseas.
Since its enactment, the FCPA has been amended twice – in 1988 and 1998. The amendments clarified some provisions, added some affirmative defenses, and expanded the scope.
Enforcement of the FCPA has increased dramatically in recent years. It is now a high priority for the Department of Justice (DOJ) and Securities and Exchange Commission (SEC).
The FCPA contains both anti-bribery provisions and accounting provisions. Companies need to understand both aspects to ensure compliance.
The anti-bribery provisions prohibit the following:
“Foreign official” is broadly defined to include officers or employees of a foreign government or public international organization. It also includes political parties and candidates.
Importantly, the FCPA prohibits both actual payments and offers or promises of payment. The bribe does not actually have to occur for it to be illegal.
The FCPA also prohibits “willful ignorance” – meaning companies can’t just turn a blind eye to bribery they know is likely happening. There is an expectation they will monitor third parties like agents, consultants, and distributors.
In addition to the anti-bribery rules, the FCPA requires companies to:
This applies to all companies that file reports with the SEC, including foreign companies listed on U.S. stock exchanges.
The accounting provisions are meant to prevent companies from hiding bribes or other improper payments. It forces them to demonstrate sound financial controls.
The FCPA provides two affirmative defenses that can apply in certain circumstances:
However, these defenses are limited and narrow in scope. Companies should seek specific legal advice before relying on them.
The penalties for violating the FCPA can be severe. Companies can face:
Individuals can be fined up to $250,000 per violation and sentenced to up to 5 years in prison. FCPA violations can also lead to suspension or debarment from government contracting.
In recent major cases, fines have routinely been in the tens or hundreds of millions of dollars. U.S. authorities take these violations very seriously.
Given the steep penalties for violating the FCPA, companies should implement compliance programs to prevent issues. Effective programs have several key features:
Companies should seek guidance from experienced FCPA counsel when designing and implementing their compliance programs.
FCPA enforcement shows no signs of slowing down. Some recent trends include:
There are also ongoing discussions around potential amendments to the FCPA. Areas being considered include:
However, major changes to the FCPA do not appear imminent. Companies should continue monitoring enforcement trends and potential reforms.
The FCPA is a complex law with serious penalties for violations. By understanding the key provisions, implementing compliance programs, and monitoring developments, global businesses can avoid significant legal and reputational risks.
With robust preparation, companies can conduct international business successfully while still adhering to the highest ethical standards.
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