Two affirmative defenses to the FCPA’s anti-bribery provisions

On Behalf of | Apr 2, 2020 | Firm News

The U.S. Department of Justice and the U.S. Securities and Exchange Commission may invoke the Foreign Corrupt Practices Act against Texas-based residents or companies suspected of making or offering bribes to foreign officials in exchange for business opportunities. We have experience representing clients facing allegations that they violated the FCPA’s anti-bribery provisions. 

The FCPA sets out two affirmative defenses to bribery charges. 

Local law defense 

You may refute charges of bribery by supplying evidence that the written laws of the foreign country permitted the challenged payment or offer. This defense does not depend on whether the foreign country’s laws explicitly address bribery, and the fact that a country’s laws may be silent does not constitute a defense. A court may weigh your actions and knowledge to determine whether you suspected the payment would violate applicable laws. 

Reasonable and bona fide business expenditure defense 

You may also defend against bribery charges by establishing that the suspect payment or item of value was a reasonable and bona fide expense “directly related to” legitimate business purposes. The FCPA acknowledges two categories of legitimate purposes. The first category includes activities in which you are promoting, demonstrating or explaining your products or services. The second category allows you to sign and perform contracts with a foreign party. 

Burden of proof 

When you plead an affirmative defense, you bear the burden of proof. To successfully assert the local law defense, you must establish that the payment was legal under the foreign country’s laws. If you are claiming the reasonable and bona fide business expenditure defense, you may help substantiate your position by maintaining complete and accurate records that document the purpose of moneys expended or offered. 

You may visit our website to learn more about defending against alleged violations of the FCPA. 

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