The Foreign Corrupt Practices Act (FCPA) is a US law that prohibits companies and individuals from engaging in bribery or corrupt practices in their dealings with foreign officials or foreign entities.
The anti-bribery provisions of the Foreign Corrupt Practices Act (“FCPA”) make it unlawful for a U.S. person, and certain foreign issuers of securities, to make a corrupt payment to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person. The anti-bribery provisions also apply to foreign firms and any person who performs an action in furtherance of making a corrupt payment within the United States.
The FCPA requires companies that are publicly traded in the United States to maintain internal accounting controls so that their transactions are accurately reflected. Failure to maintain accurate books and records or to have adequate internal controls can also result in FCPA violations. These “books and records” provisions are a separate offense, but were designed to be read with the anti-bribery provisions.
Violations of the FCPA can result in significant penalties and fines, as well as reputational damage to companies and individuals involved. Companies and individuals can face criminal charges and civil penalties, and may be barred from doing business with the US government or receiving US government contracts.
The FCPA is a complicated law that requires a deep understanding of it’s provisions and enforcement trends, which an experienced FCPA defense attorney can provide. An attorney can safeguard your legal rights during the investigation, preventing any unfair or illegal practices by government agencies or regulatory bodies. Additionally, a defense attorney can work to reduce fines or penalties imposed on your company and develop a strategy to mitigate reputational damage. Furthermore, an FCPA defense attorney can assist in developing compliance programs to prevent future violations by creating policies and procedures, training employees, and implementing controls.
When your company is being investigated for potential violations of the Foreign Corrupt Practices Act (FCPA), it’s crucial to seek the advice of an experienced FCPA defense lawyer who can guide you through the intricate legal process and safeguard your interests. Hilder & Associates P.C. is a team of white-collar crime attorneys who possess considerable expertise in handling FCPA cases, and are proud to offer valuable assistance in responding to investigations, creating efficient compliance programs, and minimizing any possible fines or sanctions.
Having the support of an experienced FCPA defense attorney can be vital if you face a court proceeding for an alleged FCPA violation. We can assist you in understanding the legal proceedings, building a robust defense, and advocating for your rights in court.
What Constitutes A Violation?
A violation of the FCPA may occur when a company or individual offers, promises, or provides anything of value to a foreign official or foreign entity in order to obtain or retain business or gain an improper advantage. This can include bribes, kickbacks, or other forms of improper payments. The FCPA applies to any individual, including the U.S. parent corporation of a foreign subsidiary if the parent authorized the activity in question. For the payment to be corrupt or a bribe, it must be intended to induce the recipient to misuse his official position to direct business wrongfully. The payment need not succeed, and a violation may occur by simply offering to make a payment. A payment or bribe includes money or anything of value.
A foreign official is broadly defined under the FCPA. Although the Department of Justice recommends using its FCPA Opinion Procedure for determining whether a person is an “official,” it is relatively clear that the term includes diplomats, politicians, candidates for office, customs agents, employees of public-private joint enterprises, and may include members or affiliates of royal families. Also, it must be noted that the use of an intermediary to make an offer the payment to the official does not cleanse the violation.
Lastly, the payment must be made to obtain or retain business. A payment’s business purpose is broadly defined, such that the term includes more than the award of a contract, but also the maintenance of an already existing contract. Also, business transactions need not involve a government contract.
All criminal FCPA prosecutions fall under the jurisdiction of the Department of Justice. Civil prosecutions for FCPA violations may be brought by the SEC. These executive agencies may run parallel investigations and share information, yet seek distinct penalties. There are also private causes of actions for FCPA violations, which may be brought by a business competitor who lost business due to the corrupt payment. In such a situation, the plaintiff may seek treble damages.
Defending Against FCPA Violation Allegations
There are affirmative defenses to alleged FCPA violations. The FCPA expressly provides that payments for routine governmental action called “grease payments” or “facilitation payments”, such as obtaining licenses or permits, may be permissible. Hiring police protection for a facility may also be permissible. However, whether a payment to an official falls into a permissive category is a question that may require the skill of legal counsel.
In the past decade, Hilder & Associates, P.C., has extensively represented persons accused of FCPA violations or have been targets of FCPA investigations. In FCPA investigations, experience is requisite and all situations are unique.
If your company is facing an FCPA investigation or allegations of FCPA violations, it is important to seek the guidance of an experienced FCPA defense attorney who can help you navigate the complex legal landscape and protect your rights. Hilder & Associates P.C. has a team of white collar crimes attorneys with extensive experience in FCPA cases, and can provide valuable guidance on how to respond to investigations, develop effective compliance programs, and mitigate potential penalties.
Moreover, FCPA investigations can involve multiple agencies, including the Department of Justice, Securities and Exchange Commission, and other foreign regulatory bodies, which can be overwhelming for companies to manage on their own. Hilder & Associates P.C. can assist you in managing the investigations and negotiations with these agencies and provide skilled representation in court.
Reach out to Hilder & Associates P.C. , reputable FCPA defense lawyers, to help you protect your company’s reputation, reduce the risk of criminal or civil penalties, and ensure compliance with the FCPA and other applicable laws and regulations. Call us toll-free at 888-659-8742 or locally at 713-234-1416.
“Foreign Corrupt Practice Act Trends and Enforcement” Information Slide