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.

A copy of the Resource Guide is available for download, free of charge, at www.justice.gov/criminal/fraud/fepa and www.sec.gov/spotlight/fepa.shtml.

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.

The  as amended by the International Anti-bribery and Fair Competition Act of 1998 (collectively, “FCPA”) was enacted to prohibit bribes and other illegal payments to officials of a foreign government, public international organization or foreign political party by American companies and by foreign persons present in the United States to obtain or retain business or to secure any improper advantage. The FCPA is part of the Securities and Exchange Act of 1934 and contains provisions concerning record keeping and accounting as well as penalties for violations.

The accounting provisions require companies to keep detailed books, records and accounts accurately reflecting corporate payments and transactions. They also require such companies to institute and maintain internal accounting control systems that would assure management’s control over the company’s assets. The prohibited payments (antibribery) provisions are designed to prohibit U.S. citizens and companies and foreign persons present in the United States from using the mails or any instrumentality of interstate commerce corruptly in furtherance of an offer, payment or promise to pay or give anything of value to officials of a foreign government, public international  organization or foreign political party, or (with knowledge or belief that it will go to someone in any such class of recipients) to any person for purposes of influencing official acts (including failures to act) in order to assist in obtaining or retaining business or to  secure any improper advantage.