Anti-bribery provisions make it unlawful for a US resident or company to make a corrupt payment to a foreign official for the purpose of getting or retaining business, getting a contract, or other business transactions. These provisions also apply to an issuer or someone who issues a security or registers a security with the SEC.
These laws also apply to a domestic concern, which is any business incorporated in United States, but also to any foreign business that might have its principal place of business in the United States. This category also covers any individual who is a citizen, a national or a resident of the United States. Our attorneys could further explain the DC anti-bribery provisions in the FCPA.
Prosecutors may file FCPA claims that violate the anti-bribery provisions when they have evidence of territorial jurisdiction. What territorial jurisdiction means is that if evidence of FCPA violations occurred within the United States, then it allows US officials to prosecute even if other actions occurred outside the country. For example, prosecuting authorities could use evidence of phone calls, emails, or text messages that were either sent or received in the US to pursue a FCPA violation. Territorial jurisdiction also may apply to the US banking system or sending a wire transfer to or from a US Bank.
There are two potential affirmative defenses that are built into the statute. First, if the alleged payment, gifts, offer, promise, etc. are lawful under the written laws and regulations of the foreign official’s country, this does not violate the FCPA.
The second affirmative defense is if those same payment, gift, offers, etc. are a reasonable and bonafide expenditure, this does not violate the law. These are any expenses that are directly related to the promotion of the product that the company is trying to work with in a foreign country.
A routine governmental action is one exception to the FCPA anti-bribery provision in DC. The FCPA does not apply to facilitating or expediting payments, where the purpose of the payment is to expedite or secure the performance of their routine governmental action.
A routine governmental action involves an ordinary and commonly performed action by a foreign official in getting a permit, a license, other official documents to allow a person do business in a foreign country. Processing governmental papers like a visa, providing police protection, picking up a delivery, scheduling an inspection, and providing telephone service are all examples of routine governmental actions. It does not include any decision by a foreign official as to whether to award new business or continued business for the company. These actions are supposed to be ministerial duties something that gets done ordinarily in the normal course of doing government business, not the decision-making part which is where money is used to try and influence another person or company.
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