DOJ and SEC Jointly Release Resource Guide to the U.S. Foreign Corrupt Practices Act
On November 14, 2012, two Federal agencies, who have jurisdiction over the U.S. Foreign Corrupt Practices Act, jointly released a very useful and comprehensive Resource Guide to this very detailed, complex and often misunderstood law. The nearly 120-page document represents the joint efforts of the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission.
You may be asking yourself how a law entitled the Foreign Corrupt Practices Act could potentially apply to your business, even if you have no active or regular international business operations. The answer is that the law potentially reaches all issuers of securities in the United States, “domestic concerns,” and even foreign companies who have securities listed in a United States market.
The FCPA prohibits payments that are intended to induce or influence a foreign official to use their position to assist in obtaining, retaining, or directing business. Very few of us have had contact with a foreign official as we would commonly understand. The term “foreign official” can encompass a broader range of individuals than you may expect, particularly in countries where many aspects of business are governmental or quasi-governmental.
It is the broad manner in which each of the relevant terms and requirements are interpreted that makes the FCPA so dangerous. It is possible to step into a violation without even knowing it. For example, the government considers individuals who you may never expect to be “foreign officials.” For example, in certain countries, hospitals are publicly run, so your engagement with a hospital administrator, purchasing agent, or other hospital representative may actually be an engagement with a foreign official.
This is only one of the many examples of how the FCPA may apply to your business even if you do not consider yourself to be an international company or having an engagement with foreign officials.
We recommend that all of our clients consider the potential implications of the FCPA on their businesses. Ruder Ware continually assist clients with FCPA compliance issues. We have assembled a multidisciplinary team of attorneys, include one who is Certified in Corporate Compliance and Ethics and are available to assist you with FCPA or other regulatory compliance issues.