Foreign Corrupt Practice Act – 15 U.S.C. § 78dd-1 et seq.

The Foreign Corrupt Practices Act (FCPA) is a federal criminal statute that, among other things, makes it illegal to bribe a foreign government official. It is codified at 15 U.S.C. § 78dd et seq. In recent years, the Department of Justice has stepped up efforts to investigate and prosecute white collar offenses, particularly FCPA offenses.  In these cases, it is critical to seek an FCPA attorney to who has the knowledge and experience to zealously represent you against FCPA charges or to represent your interests in an FCPA investigation.

Who Is Subject To The FCPA?

Although the FCPA has some limits, almost anyone can be prosecuted under it. It covers U.S. citizens and companies bribing foreign officials, but also foreign nationals if they commit part of the offense of bribery on U.S. territory. Courts have given extensive interpretations of what it means to commit part of the offense on U.S. territory. In practice, this means that federal prosecutors rarely have trouble proving that the defendant is covered by the FCPA.

One important caveat, however, is that the actual foreign government official who receives the bribe cannot be prosecuted under the FCPA.

What Conduct Violates The FCPA?

Many elements of an FCPA violation mimic traditional bribery. The anti-bribery provision of the FCPA criminalizes: (1) the willful use (2) of mail or instrument of interstate commerce (3) to make a payment, offer, or promise of anything of value (4) with corrupt intent, (5) to a foreign official, foreign political party or party official, or candidate for foreign political office, (6) to influence any official act or decision, induce any unlawful action, or secure any improper advantage, (7) for the purpose of obtaining, retaining, or directing business to any person.

Defenses And Exceptions To The FCPA

As with almost all white collar crimes, one defense is to show a lack of criminal intent. For example, one argument might be that a payment to the foreign official had no relationship to an official act.

The FCPA also contains several important statutory defenses: you can avoid conviction by showing that the payments were legal in the foreign country, that the payments were a “reasonable and bona fide expenditure” or that the payments were “grease payments” intended to expedite routine processing. Because the FCPA is an intricate area of the law, it is important for someone who has been charged with FCPA violations to consult an experienced FCPA defense attorney to discuss potential defenses.

Potential Penalties For Violating The FCPA

If you are convicted under the FCPA’s anti-bribery provision, there is a maximum penalty of five years’ imprisonment and a fine of $100,000. However, the government frequently brings additional charges such as money laundering, conspiracy, wire or mail fraud, and securities law violations. The additional charges could complicate your case and increase your exposure if you are convicted. It is important to speak with an experienced FCPA lawyer who can advise you on how to proceed.

Experienced FCPA Attorneys

We have the experience needed to effectively represent you if you are charged under the FCPA. Eugene Gorokhov and Charles Burnham represented an individual charged in the FBI’s so-called “Africa sting case” (sometimes also called the “Shot show case”) – one of the largest reverse-sting FCPA prosecutions in the history of the law. Ultimately, almost all of the defendants in that case, including our client, had their charges dismissed.