January 8, 2020

by John Mukum Mbaku, Brady Presidential Distinguished professor of economics, Weber State University

INTRODUCTION

U.S. businesses and other persons engaged in international business transactions face many risks, which range from exposure to multiple currencies, different political and economic systems, and multiple languages, to customs and traditions that are totally alien to them. Nevertheless, by far the most important challenge for persons subject to U.S. jurisdiction who undertake international business transactions are the provisions of the Foreign Corrupt Practices Act (FCPA).[1] Persons who run afoul of these provisions can be prosecuted in U.S. courts—that is, any person subject to U.S. jurisdiction who is engaged in international business transactions and who, for example, bribes a foreign government official in order to gain a competitive advantage in the international markets in which this person transacts, can be charged with crimes that are justiciable in U.S. domestic courts. Hence, it is important for persons subject to U.S. jurisdiction who are engaged in international business transactions to fully familiarize themselves with the FCPA and its provisions and make sure that they seek legal counsel to help them fully and effectively navigate the intricacies of the FCPA. Such persons should also consider consulting and making use of the U.S. Department of Justice’s FCPA Opinion Procedure.[2]

THE EVOLUTION OF THE FCPA

During the mid-to-late-1970s, U.S. economists, political scientists, and legal scholars were pre-occupied with the study of political corruption. Of particular interest to these scholars was the Watergate Affair, which created a constitutional crisis that resulted in the resignation of the country’s president, Richard Nixon. However, it was not only academicians that were interested in corruption and its impact on economic and political development. The U.S. Congress took a particular interest in how corporate corruption was affecting markets at home and abroad. The Congress was particularly interested in the bribery of foreign public officials by U.S. multinational companies in order to secure and retain business in various countries around the world.

The U.S. Congress tasked the Security and Exchange Commission (SEC) with investigating alleged bribery of foreign government officials by U.S.-based multinational corporations and other natural and legal persons subject to U.S. jurisdiction. At the conclusion of its work, the SEC had determined that over 400 U.S. corporations had admitted to “questionable or illegal payments in excess of $300 million to foreign government officials, politicians, and political parties.”[3] The investigation conducted by the SEC revealed that the abuses ranged from the bribery of high-ranking foreign government officials “in order to secure some type of favorable action by a foreign government to ‘facilitating payments’ that allegedly were made to ensure that government functionaries discharged certain ministerial or clerical duties.”[4]

The SEC investigation also revealed the universal nature of corruption. It was determined that corruption pervaded virtually all economies and had become a major constraint to the functioning of the global economy. In response to the report presented by the SEC, the U.S. Congress passed a resolution calling for the development of international codes of conduct forbidding “bribery, indirect payments, kickbacks, unethical political contributions and other such disreputable activities.”[5] U.S. policymakers were in general agreement that widespread corruption, including especially the bribery of public officials, created perverse incentives in markets and resulted in “unfair, unjust, and unreasonable conditions of competition in world trade and commerce”[6] and that it was important that those countries that participated in the international economy should outlaw these practices in order to enhance and restore competitiveness in the global economy. The U.S. Congress was particularly interested in making sure that U.S. corporations were not placed on a competitive disadvantage, especially in international business transactions.

On March 31, 1976, U.S. President Gerald Ford appointed Commerce Secretary Elliot Richardson to chair the cabinet-level Task Force on Questionable Corporate Payments Abroad (“Richardson Task Force”).[7] The Richardson Task Force concluded that a treaty was needed to ensure that “all nations, and the competing firms of different nations, are treated on the same basis”[8] in international business transactions. Unable to convince the international community to adopt a convention outlawing the bribery of foreign public officials in international business transactions, the U.S. Congress proceeded with efforts to enact legislation criminalizing such practices. Thus, in 1977, the U.S. Congress amended the Securities and Exchange Act of 1934 and enacted the Foreign Corrupt Practices Act (FCPA) and it was signed into law by President Jimmy Carter on December 19, 1977.[9]

The overarching objective of the FCPA is to criminalize the bribery of foreign public officials by persons[10] subject to U.S. jurisdiction. Specifically, the FCPA was designed by Congress to attack corruption in international business transactions in two ways: (1) the FCPA’s “anti-bribery provisions . . . prohibit individuals and businesses from bribing foreign government officials in order to obtain or retain business[;]” and (2) “the accounting provisions . . . impose certain record keeping and international control requirements on issues, and prohibit individuals and companies from knowingly falsifying an issuer’s system of internal controls.”[11]

Since it was enacted in 1977, the FCPA has been amended twice, in 1988 and 1998. In 1998, the FCPA was amended after the United States ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions—the amendments were designed to put the FCPA in conformity with the provisions of the OECD Convention.

THE PROVISIONS OF THE FCPA

The FCPA has two major and interrelated components, namely (1) compliance and (2) penalties (civil and/or criminal).[12] The compliance component establishes standards for record-keeping[13] by persons subject to U.S. jurisdiction who are engaged in international business transactions, while the penalties component criminalizes certain foreign practices of U.S. corporations and other persons subject to U.S. jurisdiction.[14] The FCPA’s provisions apply to categories of U.S. legal and natural persons that are defined in the statute as “issuers,”[15] “domestic concerns,”[16] and “persons other than issuers or domestic concerns.”[17] Although the word “issuer” is not defined by the FCPA, legal scholars and practitioners have noted, however, that the way the word is used in the statute clearly indicates that it refers to “legal” or “natural persons” who have issued or own “a class of securities registered pursuant to section 781 of this title.”[18] The FCPA, however, defines the expression “domestic concern” as follows:

A domestic concern is any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that is organized under the laws of the United States or its states, territories, possessions, or commonwealths or that has its principal place of business in the United States.[19]

In addition, “domestic concerns” also include “[o]fficers, directors, agents, or stockholders acting on behalf of a domestic concern, including foreign nationals or companies.”[20] The FCPA also applies to certain foreign nationals or entities who are considered “persons other than issuers and domestic concerns”—the latter are “foreign persons and foreign non-issuer entities that, either directly or through an agent, engage in any act in furtherance of a corrupt payment (or an offer, promise, or authorization to pay) while in the territory of the United States,” as well as “officers, directors, employees, agents, or stockholders acting on behalf of such persons or entities.”[21]

Under the FCPA, only “issuers” are legally required to fulfil the “record-keeping standards.”[22] All issuers must not only keep records of all their foreign transactions but must also make certain that these records are maintained according to or in accordance with the standards set or prescribed by the FCPA. Specifically, any natural or legal person who is designated under U.S. law as an “issuer” must “make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer.”[23] The FCPA also imposes an obligation on every issuer to “devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that—

(i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary (I) to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and (II) to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability of assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.”[24]

The FCPA criminalizes international bribery or bribery in international business transactions for all three categories of natural and legal (or juridical) persons.[25] For any U.S. natural or legal person who is engaged in international business transactions, the most important and critical part of the FCPA is that which defines and elaborates what is “unlawful” conduct.[26] The definition of behavior that is unlawful is identical for all three categories of persons subject to U.S. jurisdiction and reads as follows:

It shall be unlawful . . . to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value.[27]

In order to violate any of the provisions of the FCPA, the person subject to U.S. jurisdiction must interact with one or more of the three categories of persons designated by the Statute: “foreign official”; “foreign political party or official thereof or any candidate for foreign political office”; and third persons who might be acting as an intermediary or agent “while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office.”[28]

Under the FCPA, penalties can attach only in the situation or case where the “offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to pay, or authorization of the giving of anything of value” is for the purpose of:

(A)(i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or (B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person.[29]

The FCPA provides accused persons with two affirmative defenses, namely:

(1) the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official’s, political party’s, party official’s, or candidate’s country;[30] or
(2) the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to—[31]

(A) the promotion, demonstration, or explanation of products or services; [32]or (B) the execution or performance of a contract with a foreign government or agency thereof.[33]

The U.S. Congress placed the enforcement of the FCPA in the hands of the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ). In its enforcement actions, the SEC only imposes civil penalties and only in situations that involve securities.[34] The DOJ, under the leadership of the Attorney General (AG), is granted significantly broader powers to enforce the provisions of the FCPA and deal with persons who violate provisions of the FCPA. In addition, the AG can also issue opinions[35] and guidelines,[36] seek injunctive relief,[37] “administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any books, papers, or other documents which the Attorney General deems relevant or material to such investigation.”[38]

The FCPA imposes both civil and criminal liabilities for violations of any of its provisions. If the DOJ proves in a court of law the violation of a provision of the FCPA was “willful,” the offending party may, in addition to paying a fine, suffer imprisonment of up to twenty years.[39] The U.S. Government can hold violators of the FCPA civilly and criminally liable. In addition, the government can impose additional punishments on persons who have been convicted of violating the provisions of the FCPA.[40] For example, the government can prohibit a convicted person from doing business with the government or any of its agencies,[41] ban such a person from receiving an export license,[42] and the government can impose such other penalties as provided for by law.[43] In addition, a convicted person may be subject to cross-debarment by various multilateral development banks, such as the World Bank, the African Development Bank, and others.[44]

Finally, the DOJ can make sure that all payments made in violation of the provisions of the FCPA do not qualify as legitimate deductible business expenses under U.S. tax laws.

DOJ & SEC ENFORCEMENT OF THE FCPA 

During the last several decades, both the U.S. Department of Justice and the SEC have significantly increased their enforcement activities against persons under U.S. jurisdiction engaged in international business transactions. Examples include the following:

• On May 14, 2019, the U.S. Department of Justice announced that Frank James Lyon, a U.S. citizen residing in Hawaii, had been sentenced by U.S. District Judge Susan O. Mollway of the District of Hawaii, to 30 months in prison for his involvement in an international bribery conspiracy that violated the anti-bribery provisions of the FCPA.[45]
• On June 20, 2019, “Walmart agreed to pay more than $144 million to settle the SEC’s charges and approximately $138 million to resolve parallel criminal charges by the U.S. Department of Justice for a combined total of more than $282 million.”[46]
• On July 22, 2019, Microsoft Hungary, a wholly-owned subsidiary of Microsoft Corporation (USA), “agreed to pay a criminal penalty of more than $8.7 million to resolve the government’s investigation into violations of the Foreign Corrupt Practices Act (FCPA) arising out of a bid rigging and bribery scheme in connection with the sale of Microsoft software licenses to Hungarian agencies.”[47]
• On September 13, 2019, the Securities and Exchange Commission announced that Sridhar Thiruvengadam, the former chief operating officer of Cognizant Technology Solutions Corporation, had “agreed to settle charges that he violated the Foreign Corrupt Practices Act by participating in a scheme to bribe an Indian government official.”[48]
• On September 26, 2019, the Securities and Exchange Commission “announced that Quad/Graphics, Inc., a Wisconsin-based digital and print marketing provider, [had] agreed to pay nearly $10 million to resolve charges that it violated the Foreign Corrupt Practices Act (FCPA) by engaging in multiple bribery schemes in Peru and China.”[49]
• On December 6, 2019, the DOJ announced that Ericsson, a multinational telecommunications company headquartered in Stockholm, Sweden, had “agreed to pay penalties of more than U.S. $1 billion to resolve the government’s investigation into violations of the Foreign Corrupt Practices Act (FCPA) arising out of [Ericsson’s] scheme to make and improperly record tens of millions of dollars in improper payments around the world.”[50] The $1 billion was made up of a criminal penalty of $520 million and approximately $540 million to be paid to the SEC in a related matter.[51]

The sentence of 15 years in prison handed to Joel Esquenazi, former president of Terra Telecommunications Corporation in 2011, is the longest sentence ever imposed in an FCPA case. The company’s former president, Carlos Rodriquez, was sentenced to 7 years in prison. They were convicted for their involvement in a scheme to bribe Haitian government officials at Télécommunications d’Haïti, a state-owned telecommunications company. In announcing the sentences, the U.S. Department of Justice officials noted that the sentences were “a stark reminder to executives that bribing government officials to secure business advantages is a serious crime with serious consequences.”[52] The DOJ officials noted further that “[a] company’s profits should be driven by the quality of its goods and services, and not by its ability and willingness to pay bribes to corrupt officials to get business” and that the long prison sentences “confirm the serious consequences of ignoring corporate ethics when doing business abroad.”[53]

FCPA COMPLIANCE LESSONS FOR PERSONS SUBJECT TO U.S. JURISDICTION

Persons subject to U.S. jurisdiction and their third-party intermediaries who are engaged in international business transactions must keep certain things in mind. These include, but are not limited to following:

• They must keep impeccable records of their international transactions. Such records will help them defend themselves against any legal action against them by the DOJ and/or SEC.
• They must familiarize themselves with all the provisions of the FCPA. At the minimum, such a person should always consult an attorney who specializes in the FCPA before embarking on international business transactions. If it is possible, the entity should have an in-house legal department that includes an attorney with expertise in the FCPA.
• They should consider using the U.S. Department of Justice’s FCPA Opinion Procedure.
• Special care should be taken to properly monitor and supervise third-party intermediaries (TPIs) “who interact with employees of state-owned enterprises, foreign government regulators or their foreign officials.”[54]
• They must take compliance to the provisions of the FCPA seriously and make sure that enough resources, including adequately trained staff, are allocated to the enforcement effort. A system of proactive risk assessment, as well as leadership that prioritizes ethical behavior, integrity and accountability, must be considered an integral part of an effective compliance policy.[55]
• They must regularly conduct audits of operations to identify areas that need strengthening. They must also look out for high-risk transactions  and undertake action to minimize such transactions and where necessary, take disciplinary action against officials, including TPIs, who put the entire operation at risk of offending provisions of the FCPA.

Compliance to the provisions of the FCPA is serious business and persons subject to U.S. jurisdiction who are engaged in international business transactions must be serious about their compliance activities. They must see investment in FCPA compliance as part of good business practice.

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