The Foreign Corrupt Practices Act of 1977 (FCPA) was enacted to make it unlawful for certain people to pay foreign government officials. The FCPA also prohibits giving funds to anyone who knowingly uses at least some of the payments to bribe foreign officials or other prohibited recipients directly or indirectly. The FCPA can apply anywhere in the world even if the bribes do not occur on U.S. territory. For example, if a United States company bribes a foreign official while visiting the foreign official abroad, the laws and regulations of the FCPA can still apply.
If you are being accused of violating the FCPA’s anti-bribery laws, having a federal attorney on your side can make a difference in the outcome of your case. Contact a Cofer Luster federal bribery lawyer today to discuss your legal options; call 682-777-3336 or reach us online.
What Constitutes A Bribe?
A bribe under the FCPA constitutes an offer, payment, promise, or authorization to give any foreign official anything of value. The term anything of value is relatively broad under the FCPA, which may include cash, vehicles, computers, and much more.
Who Is A Foreign Governmental Official?
The term for foreign officials under the FCPA is also broadly defined and can include any employee of a foreign government, department, or agency. Foreign officials can also be anyone acting on behalf of a foreign government or department. For example, if someone is procuring contracts on behalf of a foreign government, giving them a free computer can constitute a bribe.
Defenses To FCPA’s Anti-Bribery Prohibitions
There are several situations in which payments to foreign officials or individuals acting on behalf of foreign officials would not constitute violations of the FCPA’s anti-bribery laws.
Routine Government Action
The FCPA does not prohibit an expenditure from expediting or securing the performance of a routine governmental action. The term routine governmental action means actions that are commonly performed by a foreign official to:
- Obtain permits, licenses, or other documents to qualify a person to do business in a foreign country.
- Process governmental papers, such as work visas, tourist visas, or work orders.
- Provide telephone services, utilities, cargo, or the protection of other goods from deterioration.
Whether or not granting a new business contract or other official business is within the foreign official’s routine work, that does not constitute routine governmental action. As a result, routine government action will not be a viable defense for giving foreign officials money to decide on whether to award work to a business.
Written Laws
If there is a written law or regulation that permits the payment, gift, or offer of anything of value to a foreign official, then it is not illegal under the FCPA to give the foreign official something of value.
Bona Fide Expenditures
If the payment was a bona fide expenditure, it cannot be considered a bribe. A bona fide expenditure can be travel expenses directly related to a product or service or the execution of a contract with a foreign official’s government.
An experienced attorney will be able to review your case and determine whether you have an affirmative defense or if your actions fall under routine governmental action.
Accounting Provisions
Under the FCPA, companies must keep accurate records and maintain internal controls to ensure no bribes occur. The accounting provisions are as follows:
- Books and records: This accounting provision requires a company to keep accurate and fair records that reflect the transactions and disposition of the company’s assets.
- Internal controls: This accounting provision requires a company to maintain a system that provides reasonable assurances that transactions are authorized, recorded, and remain accountable.
Enforcement Of The FCPA
The U.S. Securities and Exchange Commission (SEC) and the U.S. Department of Justice (DOJ) enforce the FCPA. If someone violates the FCPA, the SEC may bring civil charges against the individual or company who is accused of bribing a foreign official. The DOJ brings criminal penalties against the individual who bribed a foreign official and the foreign official who accepted the bribe. As a result, you can have multiple charges against you simultaneously.
Penalties For Violating The FCPA
Violations of the FCPA can result in civil and criminal penalties, which depend on whether the violator is an individual or an entity. Individuals convicted for violating the FCPA can face the following penalties:
- Criminal penalties: Up to five years in prison and up to $100,000 in criminal fines.
- Civil penalties: Up to $10,000 in civil fines.
Entities found guilty of violating the FCPA can face the following criminal and civil penalties:
- Criminal penalties: Up to $2,000,000 in criminal fines.
- Civil penalties: Up to $10,000 in civil fines.
Additionally, people defined as having domestic concerns can be fined up to $2,000,000. A domestic concern means anyone who is a citizen or resident of the United States and a business with its principal place of business in the United States. Penalties can be increased if there are willful violations of the FCPA.
Contact An Experienced Attorney For Help Today
If you or someone you know has been accused of bribing a foreign official, you need an experienced defense team to preserve your rights. The attorneys at Cofer Luster are ready to fight for your best interests. Contact us today to discuss your legal options during a confidential consultation by calling us at 682-777-3336 or by filling out our online form.
