Second, companies should have an understanding of
the business rationale for including the third party in the
transaction. Among other things, the company should
understand the role of and need for the third party and
ensure that the contract terms specifically describe the services
to be performed. Additional considerations include
payment terms and how those payment terms compare to
typical terms in that industry and country, as well as the
timing of the third party’s introduction to the business.
Moreover, companies may want to confirm and document
that the third party is actually performing the work for
which it is being paid and that its compensation is commensurate
with the work being provided.
Third, companies should undertake some form of
ongoing monitoring of third-party relationships. 322 Where
appropriate, this may include updating due diligence periodically,
exercising audit rights, providing periodic training,
and requesting annual compliance certifications by the
third party.
In addition to considering a company’s due diligence
on third parties, DOJ and SEC also assess whether
the company has informed third parties of the company’s
60
Compliance Program Case Study
Recent DOJ and SEC actions relating to a financial institution’s real estate transactions with a government agency
in China illustrate the benefits of implementing and enforcing a comprehensive risk-based compliance program. The
case involved a joint venture real estate investment in the Luwan District of Shanghai, China, between a U.S.-based
financial institution and a state-owned entity that functioned as the District’s real estate arm. The government entity
conducted the transactions through two special purpose vehicles (“SPVs”), with the second SPV purchasing a 12%
stake in a real estate project.
The financial institution, through a robust compliance program, frequently trained its employees, imposed a
comprehensive payment-approval process designed to prevent bribery, and staffed a compliance department with
a direct reporting line to the board of directors. As appropriate given the industry, market, and size and structure of
the transactions, the financial institution (1) provided extensive FCPA training to the senior executive responsible for
the transactions and (2) conducted extensive due diligence on the transactions, the local government entity, and the
SPVs. Due diligence on the entity included reviewing Chinese government records; speaking with sources familiar
with the Shanghai real estate market; checking the government entity’s payment records and credit references;
conducting an on-site visit and placing a pretextual telephone call to the entity’s offices; searching media sources;
and conducting background checks on the entity’s principals. The financial institution vetted the SPVs by obtaining
a letter with designated bank account information from a Chinese official associated with the government entity (the
“Chinese Official”); using an international law firm to request and review 50 documents from the SPVs’ Canadian
attorney; interviewing the attorney; and interviewing the SPVs’ management.
Notwithstanding the financial institution’s robust compliance program and good faith enforcement of it, the
company failed to learn that the Chinese Official personally owned nearly 50% of the second SPV (and therefore a
nearly 6% stake in the joint venture) and that the SPV was used as a vehicle for corrupt payments. This failure was
due, in large part, to misrepresentations by the Chinese Official, the financial institution’s executive in charge of
the project, and the SPV’s attorney that the SPV was 100% owned and controlled by the government entity. DOJ
and SEC declined to take enforcement action against the financial institution, and its executive pleaded guilty to
conspiracy to violate the FCPA’s internal control provisions and also settled with SEC.
compliance program and commitment to ethical and lawful
business practices and, where appropriate, whether it
has sought assurances from third parties, through certifications
and otherwise, of reciprocal commitments. These can
be meaningful ways to mitigate third-party risk.
Confidential Reporting and Internal Investigation
An effective compliance program should include a
mechanism for an organization’s employees and others to
report suspected or actual misconduct or violations of the
company’s policies on a confidential basis and without fear of
retaliation. 323 Companies may employ, for example, anonymous
hotlines or ombudsmen. Moreover, once an allegation
is made, companies should have in place an efficient, reliable,
and properly funded process for investigating the allegation
and documenting the company’s response, including any
disciplinary or remediation measures taken. Companies will
want to consider taking “lessons learned” from any reported
violations and the outcome of any resulting investigation to
update their internal controls and compliance program and
focus future training on such issues, as appropriate.
Continuous Improvement: Periodic Testing and
Review
Finally, a good compliance program should constantly
evolve. A company’s business changes over time, as do the
environments in which it operates, the nature of its customers,
the laws that govern its actions, and the standards of its
61
industry. In addition, compliance programs that do not just
exist on paper but are followed in practice will inevitably
uncover compliance weaknesses and require enhancements.
Consequently, DOJ and SEC evaluate whether companies
regularly review and improve their compliance programs
and not allow them to become stale.
According to one survey, 64% of general counsel whose
companies are subject to the FCPA say there is room for
improvement in their FCPA training and compliance programs.
324 An organization should take the time to review and
test its controls, and it should think critically about its potential
weaknesses and risk areas. For example, some companies
have undertaken employee surveys to measure their compliance
culture and strength of internal controls, identify best
practices, and detect new risk areas. Other companies periodically
test their internal controls with targeted audits to make
certain that controls on paper are working in practice. DOJ
and SEC will give meaningful credit to thoughtful efforts
to create a sustainable compliance program if a problem is
later discovered. Similarly, undertaking proactive evaluations
before a problem strikes can lower the applicable penalty
range under the U.S. Sentencing Guidelines. 325 Although the
nature and the frequency of proactive evaluations may vary
depending on the size and complexity of an organization, the
idea behind such efforts is the same: continuous improvement
and sustainability. 326
Mergers and Acquisitions: Pre-Acquisition Due
Diligence and Post-Acquisition Integration
In the context of the FCPA, mergers and acquisitions
present both risks and opportunities. A company
that does not perform adequate FCPA due diligence prior
to a merger or acquisition may face both legal and business
risks. 327 Perhaps most commonly, inadequate due diligence
can allow a course of bribery to continue—with all the
attendant harms to a business’s profitability and reputation,
as well as potential civil and criminal liability.
In contrast, companies that conduct effective FCPA
due diligence on their acquisition targets are able to evaluate
more accurately each target’s value and negotiate for the
costs of the bribery to be borne by the target. In addition,
chapter 5
Guiding Principles
of Enforcement
such actions demonstrate to DOJ and SEC a company’s
commitment to compliance and are taken into account
when evaluating any potential enforcement action. For
example, DOJ and SEC declined to take enforcement
action against an acquiring issuer when the issuer, among
other things, uncovered the corruption at the company
being acquired as part of due diligence, ensured that the
corruption was voluntarily disclosed to the government,
cooperated with the investigation, and incorporated the
acquired company into its compliance program and internal
controls. On the other hand, SEC took action against
the acquired company, and DOJ took action against a subsidiary
of the acquired company. 328 When pre-acquisition
due diligence is not possible, DOJ has described procedures,
contained in Opinion Procedure Release No. 08-02,
pursuant to which companies can nevertheless be rewarded
if they choose to conduct thorough post-acquisition FCPA
due diligence. 329
FCPA due diligence, however, is normally only a
portion of the compliance process for mergers and acquisitions.
DOJ and SEC evaluate whether the acquiring company
promptly incorporated the acquired company into all
of its internal controls, including its compliance program.
Companies should consider training new employees, reevaluating
third parties under company standards, and, where
appropriate, conducting audits on new business units.
For example, as a result of due diligence conducted
by a California-based issuer before acquiring the majority
interest in a joint venture, the issuer learned of corrupt payments
to obtain business. However, the issuer only implemented
its internal controls “halfway” so as not to “choke
the sales engine and cause a distraction for the sales guys.”
As a result, the improper payments continued, and the
issuer was held liable for violating the FCPA’s internal controls
and books and records provisions. 330
62
Other Guidance on Compliance and
International Best Practices
In addition to this guide, the U.S. Departments of
Commerce and State have both issued publications that contain
guidance regarding compliance programs. The Department
of Commerce’s International Trade Administration has published
Business Ethics: A Manual for Managing a Responsible
Business Enterprise in Emerging Market Economies, 331 and the
Department of State has published Fighting Global Corruption:
Business Risk Management. 332
There is also an emerging international consensus on
compliance best practices, and a number of inter-governmental
and non-governmental organizations have issued
guidance regarding best practices for compliance. 333 Most
notably, the OECD’s 2009 Anti-Bribery Recommendation
and its Annex II, Good Practice Guidance on Internal
Controls, Ethics, and Compliance, 334 published in February
2010, were drafted based on consultations with the private
sector and civil society and set forth specific good practices
for ensuring effective compliance programs and measures
for preventing and detecting foreign bribery. In addition,
businesses may wish to refer to the following resources:
• Asia-Pacific Economic Cooperation—Anti-
Corruption Code of Conduct for Business; 335
• International Chamber of Commerce—ICC Rules
on Combating Corruption; 336
• Transparency International—Business Principles for
Countering Bribery; 337
• United Nations Global Compact—The Ten
Principles; 338
• World Bank—Integrity Compliance
Guidelines; 339 and
• World Economic Forum—Partnering Against
Corruption–Principles for Countering Bribery. 340
Hypothetical: Third-Party Vetting
Part 1: Consultants
Company A, a U.S. issuer headquartered in Delaware, wants to start doing business in a country that poses high risks
of corruption. Company A learns about a potential $50 million contract with the country’s Ministry of Immigration. This
is a very attractive opportunity to Company A, both for its profitability and to open the door to future projects with the
government. At the suggestion of the company’s senior vice president of international sales (Sales Executive), Company A
hires a local businessman who assures them that he has strong ties to political and government leaders in the country and
can help them win the contract. Company A enters into a consulting contract with the local businessman (Consultant). The
agreement requires Consultant to use his best efforts to help the company win the business and provides for Consultant to
receive a significant monthly retainer as well as a success fee of 3% of the value of any contract the company wins.
What steps should Company A consider taking before hiring Consultant?
There are several factors here that might lead Company A to perform heightened FCPA-related due diligence prior
to retaining Consultant: (1) the market (high-risk country); (2) the size and significance of the deal to the company; (3) the
company’s first time use of this particular consultant; (4) the consultant’s strong ties to political and government leaders;
(5) the success fee structure of the contract; and (6) the vaguely-defined services to be provided. In order to minimize the
likelihood of incurring FCPA liability, Company A should carefully vet Consultant and his role in the transaction, including
close scrutiny of the relationship between Consultant and any Ministry of Immigration officials or other government officials.
Although there is nothing inherently illegal about contracting with a third party that has close connections to politicians
and government officials to perform legitimate services on a transaction, this type of relationship can be susceptible to
corruption. Among other things, Company A may consider conducting due diligence on Consultant, including background
(cont’d)
63
chapter 5
Guiding Principles
of Enforcement
and reference checks; ensuring that the contract spells out exactly what services and deliverables (such as written status
reports or other documentation) Consultant is providing; training Consultant on the FCPA and other anti-corruption laws;
requiring Consultant to represent that he will abide by the FCPA and other anti-corruption laws; including audit rights in the
contract (and exercising those rights); and ensuring that payments requested by Consultant have the proper supporting
documentation before they are approved for payment.
Part 2: Distributors and Local Partners
Assume the following alternative facts:
Instead of hiring Consultant, Company A retains an often-used local distributor (Distributor) to sell Company A’s
products to the Ministry of Immigration In negotiating the pricing structure, Distributor, which had introduced the project
to Company A, claims that the standard discount price to Distributor creates insufficient margin for Distributor to cover
warehousing, distribution, installation, marketing, and training costs and requests an additional discount or rebate, or, in
the alternative, a contribution to its marketing efforts, either in the form of a lump sum or as a percentage of the total
contract. The requested discount/allowance is significantly larger than usual, although there is precedent at Company
A for granting this level of discount in unique circumstances. Distributor further advises Company A that the Ministry’s
procurement officials responsible for awarding the contract have expressed a strong preference for including a particular
local company (Local Partner) in the transaction as a subcontractor of Company A to perform installation, training, and
other services that would normally have been performed by Distributor or Company A. According to Distributor, the
Ministry has a solid working relationship with Local Partner, and it would cause less disruption for Local Partner to perform
most of the on-site work at the Ministry. One of the principals (Principal 1) of the Local Partner is an official in another
government ministry.
What additional compliance considerations do these alternative facts raise?
As with Consultant in the first scenario above, Company A should carefully vet Distributor and Local Partner and their
roles in the transaction in order to minimize the likelihood of incurring FCPA liability. While Company A has an established
relationship with Distributor, the fact that Distributor has requested an additional discount warrants further inquiry into
the economic justification for the change, particularly where, as here, the proposed transaction structure contemplates
paying Local Partner to provide many of the same services that Distributor would otherwise provide. In many cases, it may
be appropriate for distributors to receive larger discounts to account for unique circumstances in particular transactions.
That said, a common mechanism to create additional margin for bribe payments is through excessive discounts or rebates
to distributors. Accordingly, when a company has pre-existing relationships with distributors and other third parties,
transaction-specific due diligence—including an analysis of payment terms to confirm that the payment is commensurate
with the work being performed—can be critical even in circumstances where due diligence of the distributor or other third
party raises no initial red flags.
Company A should carefully scrutinize the relationship among Local Partner, Distributor, and Ministry of Immigration
officials. While there is nothing inherently illegal about contracting with a third party that is recommended by the end-user,
or even hiring a government official to perform legitimate services on a transaction unrelated to his or her government
job, these facts raise additional red flags that warrant significant scrutiny. Among other things, Company A would be
well-advised to require Principal 1 to verify that he will have no role in the Ministry of Immigration’s decision to award
the contract to Company A, notify the Ministry of Immigration and his own ministry of his proposed involvement in the
transaction, and certify that he will abide by the FCPA and other anti-corruption laws and that his involvement in the
transaction is permitted under local law.
(cont’d)
64
Assume the following additional facts:
Under its company policy for a government transaction of this size, Company A requires both finance and compliance
approval. The finance officer is concerned that the discounts to Distributor are significantly larger than what they have
approved for similar work and will cut too deeply into Company A’s profit margin. The finance officer is also skeptical about
including Local Partner to perform some of the same services that Company A is paying Distributor to perform. Unsatisfied
with Sales Executive’s explanation, she requests a meeting with Distributor and Principal 1. At the meeting, Distributor
and Principal 1 offer vague and inconsistent justifications for the payments and fail to provide any supporting analysis, and
Principal 1 seems to have no real expertise in the industry. During a coffee break, Distributor comments to Sales Executive
that the finance officer is naïve about “how business is done in my country.” Following the meeting, Sales Executive
dismisses the finance officer’s concerns, assuring her that the proposed transaction structure is reasonable and legitimate.
Sales Executive also reminds the finance officer that “the deal is key to their growth in the industry.”
The compliance officer focuses his due diligence on vetting Distributor and Local Partner and hires a business investigative
firm to conduct a background check. Distributor appears reputable, capable, and financially stable and is willing to take on
real risk in the project, financial and otherwise. However, the compliance officer learns that Distributor has established an
off-shore bank account for the transaction. The compliance officer further learns that Local Partner’s business was organized
two years ago and appears financially stable but has no expertise in the industry and has established an off-shore shell
company and bank account to conduct this transaction. The background check also reveals that Principal 1 is a former college
roommate of a senior official of the Ministry of Immigration. The Sales Executive dismisses the compliance officer’s concerns,
commenting that what Local Partner does with its payments “isn’t our problem.” Sales Executive also strongly objects to the
compliance officer’s request to meet with Principal 1 to discuss the off-shore company and account, assuring him that it was
done for legitimate tax purposes and complaining that if Company A continues to “harass” Local Partner and Distributor, they
would partner with Company A’s chief competitor. The compliance officer and the finance officer discuss their concerns with
each other but ultimately sign off on the deal even though their questions had not been answered. Their decision is motivated
in large part by their conversation with Sales Executive, who told them that this was the region’s most important contract
and that the detailed FCPA questionnaires and robust anti-corruption representations in the contracts placed the burden on
Distributor and Local Partner to act ethically.
Company A goes forward with the Distributor and Local Partner agreements and wins the contract after six months. The
finance officer approves Company A’s payments to Local Partner via the offshore account, even though Local Partner’s invoices
did not contain supporting detail or documentation of any services provided. Company A recorded the payments as legitimate
operational expenses on its books and records. Sales Executive received a large year-end bonus due to the award of the contract.
In fact, Local Partner and Distributor used part of the payments and discount margin, respectively, to funnel bribe payments
to several Ministry of Immigration officials, including Principal 1’s former college roommate, in exchange for awarding the
contract to Company A. Thousands of dollars are also wired to the personal offshore bank account of Sales Executive.
How would DOJ and SEC evaluate the potential FCPA liability of Company A and its employees?
This is not the case of a single “rogue employee” circumventing an otherwise robust compliance program. Although
Company A’s finance and compliance officers had the correct instincts to scrutinize the structure and economics of the
transaction and the role of the third parties, their due diligence was incomplete. When the initial inquiry identified significant
red flags, they approved the transaction despite knowing that their concerns were unanswered or the answers they received
raised additional concerns and red flags. Relying on due diligence questionnaires and anti-corruption representations is
insufficient, particularly when the risks are readily apparent. Nor can Company A or its employees shield themselves from
liability because it was Distributor and Local Partner—rather than Company A directly—that made the payments.
The facts suggest that Sales Executive had actual knowledge of or was willfully blind to the consultant’s payment of
the bribes. He also personally profited from the scheme (both from the kickback and from the bonus he received from the
company) and intentionally discouraged the finance and compliance officers from learning the full story. Sales Executive is
therefore subject to liability under the anti-bribery, books and records, and internal controls provisions of the FCPA, and
others may be as well. Company A may also be liable for violations of the anti-bribery, books and records, and internal
controls provisions of the FCPA given the number and significance of red flags that established a high probability of bribery
and the role of employees and agents acting on the company’s behalf.
65
chapter 5
Guiding Principles
of Enforcement
66

chapter 6
FCPA Penalties,
Sanctions, and
Remedies
FCPA PENALTIES, SANCTIONS,
AND REMEDIES
What Are the Potential Consequences
for Violations of the FCPA?
The FCPA provides for different criminal and civil
penalties for companies and individuals.
Criminal Penalties
For each violation of the anti-bribery provisions, the
FCPA provides that corporations and other business entities
are subject to a fine of up to $2 million. 341 Individuals,
including officers, directors, stockholders, and agents of
companies, are subject to a fine of up to $100,000 and
imprisonment for up to five years. 342
For each violation of the accounting provisions, the
FCPA provides that corporations and other business entities
are subject to a fine of up to $25 million. 343 Individuals
are subject to a fine of up to $5 million and imprisonment
for up to 20 years. 344
Under the Alternative Fines Act, 18 U.S.C. § 3571(d),
courts may impose significantly higher fines than those provided
by the FCPA—up to twice the benefit that the defendant
sought to obtain by making the corrupt payment, as
long as the facts supporting the increased fines are included
in the indictment and either proved to the jury beyond a
reasonable doubt or admitted in a guilty plea proceeding. 345
Fines imposed on individuals may not be paid by their
employer or principal. 346
U.S. Sentencing Guidelines
When calculating penalties for violations of the FCPA,
DOJ focuses its analysis on the U.S. Sentencing Guidelines
(Guidelines) 347 in all of its resolutions, including guilty pleas,
DPAs, and NPAs. The Guidelines provide a very detailed and
predictable structure for calculating penalties for all federal
crimes, including violations of the FCPA. To determine the
appropriate penalty, the “offense level” is first calculated by
examining both the severity of the crime and facts specific to
the crime, with appropriate reductions for cooperation and
acceptance of responsibility, and, for business entities, additional
factors such as voluntary disclosure, cooperation, preexisting
compliance programs, and remediation.
The Guidelines provide for different penalties for the
different provisions of the FCPA. The initial offense level
for violations of the anti-bribery provisions is determined
under § 2C1.1, while violations of the accounting provisions
are assessed under § 2B1.1. For individuals, the initial
offense level is modified by factors set forth in Chapters 3,
4, and 5 of the Guidelines 348 to identify a final offense level.
This final offense level, combined with other factors, is used
68
to determine whether the Guidelines would recommend
that incarceration is appropriate, the length of any term of
incarceration, and the appropriate amount of any fine. For
corporations, the offense level is modified by factors particular
to organizations as described in Chapter 8 to determine
the applicable organizational penalty.
For example, violations of the anti-bribery provisions
are calculated pursuant to § 2C1.1. The offense level
is determined by first identifying the base offense level; 349
adding additional levels based on specific offense characteristics,
including whether the offense involved more than
one bribe, the value of the bribe or the benefit that was conferred,
and the level of the public official; 350 adjusting the
offense level based on the defendant’s role in the offense; 351
and using the total offense level as well as the defendant’s
criminal history category to determine the advisory guideline
range. 352 For violations of the accounting provisions
assessed under § 2B1.1, the procedure is generally the
same, except that the specific offense characteristics differ.
For instance, for violations of the FCPA’s accounting provisions,
the offense level may be increased if a substantial
part of the scheme occurred outside the United States or if
the defendant was an officer or director of a publicly traded
company at the time of the offense. 353
For companies, the offense level is calculated pursuant
to §§ 2C1.1 or 2B1.1 in the same way as for an
individual—by starting with the base offense level and
increasing it as warranted by any applicable specific
offense characteristics. The organizational guidelines
found in Chapter 8, however, provide the structure for
determining the final advisory guideline fine range for
organizations. The base fine consists of the greater of the
amount corresponding to the total offense level, calculated
pursuant to the Guidelines, or the pecuniary gain or
loss from the offense. 354 This base fine is then multiplied
by a culpability score that can either reduce the fine to as
little as five percent of the base fine or increase the recommended
fine to up to four times the amount of the base
fine. 355 As described in § 8C2.5, this culpability score is
calculated by taking into account numerous factors such
as the size of the organization committing the criminal
acts; the involvement in or tolerance of criminal activity
by high-level personnel within the organization; and
prior misconduct or obstructive behavior. The culpability
score is reduced if the organization had an effective preexisting
compliance program to prevent violations and if
the organization voluntarily disclosed the offense, cooperated
in the investigation, and accepted responsibility for
the criminal conduct. 356
Civil Penalties
Although only DOJ has the authority to pursue criminal
actions, both DOJ and SEC have civil enforcement
authority under the FCPA. DOJ may pursue civil actions
for anti-bribery violations by domestic concerns (and their
officers, directors, employees, agents, or stockholders) and
foreign nationals and companies for violations while in the
United States, while SEC may pursue civil actions against
issuers and their officers, directors, employees, agents, or
stockholders for violations of the anti-bribery and the
accounting provisions. 357
For violations of the anti-bribery provisions, corporations
and other business entities are subject to a civil
penalty of up to $16,000 per violation. 358 Individuals,
including officers, directors, stockholders, and agents of
companies, are similarly subject to a civil penalty of up to
$16,000 per violation, 359 which may not be paid by their
employer or principal. 360
For violations of the accounting provisions, SEC may
obtain a civil penalty not to exceed the greater of (a) the
gross amount of the pecuniary gain to the defendant as a
result of the violations or (b) a specified dollar limitation.
The specified dollar limitations are based on the egregiousness
of the violation, ranging from $7,500 to $150,000 for
an individual and $75,000 to $725,000 for a company. 361
SEC may obtain civil penalties both in actions filed in federal
court and in administrative proceedings. 362
Collateral Consequences
In addition to the criminal and civil penalties described
above, individuals and companies who violate the FCPA may
face significant collateral consequences, including suspension
69
or debarment from contracting with the federal government,
cross-debarment by multilateral development banks, and the
suspension or revocation of certain export privileges.
Debarment
Under federal guidelines governing procurement,
an individual or company that violates the FCPA or other
criminal statutes may be barred from doing business with the
federal government. The Federal Acquisition Regulations
(FAR) provide for the potential suspension or debarment
of companies that contract with the government upon
conviction of or civil judgment for bribery, falsification or
destruction of records, the making of false statements, or
“[c]ommission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly
affects the present responsibility of a Government contractor
or subcontractor.” 363 These measures are not intended
to be punitive and may be imposed only if “in the public’s
interest for the Government’s protection.” 364
Under the FAR, a decision to debar or suspend is discretionary.
The decision is not made by DOJ prosecutors or
SEC staff, but instead by independent debarment authorities
within each agency, such as the Department of Defense or
the General Services Administration, which analyze a number
of factors to determine whether a company should be suspended,
debarred, or otherwise determined to be ineligible
for government contracting. Such factors include whether
the contractor has effective internal control systems in place,
self-reported the misconduct in a timely manner, and has
taken remedial measures. 365 If a cause for debarment exists,
the contractor has the burden of demonstrating to the satisfaction
of the debarring official that it is presently responsible
and that debarment is not necessary. 366 Each federal department
and agency determines the eligibility of contractors
with whom it deals. However, if one department or agency
debars or suspends a contractor, the debarment or suspension
applies to the entire executive branch of the federal government,
unless a department or agency shows compelling reasons
not to debar or suspend the contractor. 367
Although guilty pleas, DPAs, and NPAs do not result
in automatic debarment from U.S. government contracting,
chapter 6
FCPA Penalties,
Sanctions, and
Remedies
committing a federal crime and the factual admissions
underlying a resolution are factors that the independent
debarment authorities may consider. Moreover, indictment
alone can lead to suspension of the right to do business
with the government. 368 The U.S. Attorney’s Manual also
provides that when a company engages in fraud against the
government, a prosecutor may not negotiate away an agency’s
right to debar or delist the company as part of the plea
bargaining process. 369 In making debarment determinations,
contracting agencies, including at the state and local
level, may consult with DOJ in advance of awarding a contract.
Depending on the circumstances, DOJ may provide
information to contracting authorities in the context of
the corporate settlement about the facts and circumstances
underlying the criminal conduct and remediation measures
undertaken by the company, if any. This information sharing
is not advocacy, and the ultimate debarment decisions
are squarely within the purview of the independent debarment
authorities. In some situations, the contracting agency
may impose its own oversight requirements in order for a
company that has admitted to violations of federal law to be
awarded federal contracts, such as the Corporate Integrity
Agreements often required by the Department of Health
and Human Services.
Cross-Debarment by Multilateral Development
Banks
Multilateral Development Banks (MDBs), like the
World Bank, also have the ability to debar companies and
individuals for corrupt practices. 370 Each MDB has its own
process for evaluating alleged corruption in connection
with MDB-funded projects. When appropriate, DOJ and
SEC work with MDBs to share evidence and refer cases.
On April 9, 2010, the African Development Bank Group,
the Asian Development Bank, the European Bank for
70
Reconstruction and Development, the Inter-American
Development Bank Group, and the World Bank Group
entered into an agreement under which entities debarred
by one MDB will be sanctioned for the same misconduct
by other signatory MDBs. 371 This cross-debarment agreement
means that if a company is debarred by one MDB, it
is debarred by all. 372
Loss of Export Privileges
Companies and individuals who violate the FCPA
may face consequences under other regulatory regimes,
such as the Arms Export Control Act (AECA), 22 U.S.C.
§ 2751, et seq., and its implementing regulations, the
International Traffic in Arms Regulations (ITAR), 22
C.F.R. § 120, et seq. AECA and ITAR together provide
for the suspension, revocation, amendment, or denial of an
arms export license if an applicant has been indicted or convicted
for violating the FCPA. 373 They also set forth certain
factors for the Department of State’s Directorate of Defense
Trade Controls (DDTC) 374 to consider when determining
whether to grant, deny, or return without action license
applications for certain types of defense materials. One of
those factors is whether there is reasonable cause to believe
that an applicant for a license has violated (or conspired
to violate) the FCPA; if so, the Department of State “may
disapprove the application.” 375 In addition, it is the policy
of the Department of State not to consider applications for
licenses involving any persons who have been convicted of
violating the AECA or convicted of conspiracy to violate
the AECA. 376 In an action related to the criminal resolution
of a U.K. military products manufacturer, the DDTC
imposed a “policy of denial” for export licenses on three of
the company’s subsidiaries that were involved in violations
of AECA and ITAR. 377
When Is a Compliance Monitor or
Independent Consultant Appropriate?
One of the primary goals of both criminal prosecutions
and civil enforcement actions against companies that
violate the FCPA is ensuring that such conduct does not
occur again. As a consequence, enhanced compliance and
reporting requirements may be part of criminal and civil
resolutions of FCPA matters. The amount of enhanced
compliance and kind of reporting required varies according
to the facts and circumstances of individual cases.
In criminal cases, a company’s sentence, or a DPA or
NPA with a company, may require the appointment of an
independent corporate monitor. Whether a monitor is
appropriate depends on the specific facts and circumstances
of the case. In 2008, DOJ issued internal guidance regarding
the selection and use of corporate monitors in DPAs
and NPAs with companies. Additional guidance has since
been issued. 378 A monitor is an independent third party who
assesses and monitors a company’s adherence to the compliance
requirements of an agreement that was designed to
reduce the risk of recurrence of the company’s misconduct.
Appointment of a monitor is not appropriate in all circumstances,
but it may be appropriate, for example, where a company
does not already have an effective internal compliance
program or needs to establish necessary internal controls. In
addition, companies are sometimes allowed to engage in selfmonitoring,
typically in cases when the company has made
a voluntary disclosure, has been fully cooperative, and has
demonstrated a genuine commitment to reform.
Factors DOJ and SEC Consider
When Determining Whether a Compliance
Monitor Is Appropriate Include:
• Seriousness of the offense
• Duration of the misconduct
• Pervasiveness of the misconduct, including
whether the conduct cuts across geographic and/
or product lines
• Nature and size of the company
• Quality of the company’s compliance program at
the time of the misconduct
• Subsequent remediation efforts
71
In civil cases, a company may similarly be required
to retain an independent compliance consultant or monitor
to provide an independent, third-party review of the
company’s internal controls. The consultant recommends
improvements, to the extent necessary, which the company
must adopt. When both DOJ and SEC require a company
to retain a monitor, the two agencies have been able
to coordinate their requirements so that the company can
retain one monitor to fulfill both sets of requirements.
The most successful monitoring relationships are
those in which the company embraces the monitor or consultant.
If the company takes the recommendations and
suggestions seriously and uses the monitoring period as a
time to find and fix any outstanding compliance issues, the
company can emerge from the monitorship with a stronger,
long-lasting compliance program.
chapter 6
FCPA Penalties,
Sanctions, and
Remedies
72

chapter 7
Resolutions
RESOLUTIONS
What Are the Different Types of
Resolutions with DOJ?
Criminal Complaints, Informations, and Indictments
Charges against individuals and companies are
brought in three different ways under the Federal Rules of
Criminal Procedure: criminal complaints, criminal informations,
and indictments.
DOJ may agree to resolve criminal FCPA matters
against companies either through a declination or, in
appropriate cases, a negotiated resolution resulting in a plea
agreement, deferred prosecution agreement, or non-prosecution
agreement. For individuals, a negotiated resolution
will generally take the form of a plea agreement, which may
include language regarding cooperation, or a non-prosecution
cooperation agreement. When negotiated resolutions
cannot be reached with companies or individuals, the matter
may proceed to trial.
Plea Agreements
Plea agreements—whether with companies or
individuals—are governed by Rule 11 of the Federal
Rules of Criminal Procedure. The defendant generally
admits to the facts supporting the charges, admits
guilt, and is convicted of the charged crimes when the
plea agreement is presented to and accepted by a court.
The plea agreement may jointly recommend a sentence
or fine, jointly recommend an analysis under the U.S.
Sentencing Guidelines, or leave such items open for
argument at the time of sentencing.
Deferred Prosecution Agreements
Under a deferred prosecution agreement, or a DPA
as it is commonly known, DOJ files a charging document
with the court, 379 but it simultaneously requests that the
prosecution be deferred, that is, postponed for the purpose
of allowing the company to demonstrate its good
conduct. DPAs generally require a defendant to agree to
pay a monetary penalty, waive the statute of limitations,
cooperate with the government, admit the relevant facts,
and enter into certain compliance and remediation commitments,
potentially including a corporate compliance
monitor. DPAs describe the company’s conduct, cooperation,
and remediation, if any, and provide a calculation of
the penalty pursuant to the U.S. Sentencing Guidelines.
In addition to being publicly filed, DOJ places all of its
DPAs on its website. If the company successfully completes
the term of the agreement (typically two or three
years), DOJ will then move to dismiss the filed charges. A
company’s successful completion of a DPA is not treated
as a criminal conviction.
74
Non-Prosecution Agreements
Under a non-prosecution agreement, or an NPA as
it is commonly known, DOJ maintains the right to file
charges but refrains from doing so to allow the company
to demonstrate its good conduct during the term of the
NPA. Unlike a DPA, an NPA is not filed with a court but is
instead maintained by the parties. In circumstances where
an NPA is with a company for FCPA-related offenses, it is
made available to the public through DOJ’s website. The
requirements of an NPA are similar to those of a DPA,
and generally require a waiver of the statute of limitations,
ongoing cooperation, admission of the material facts, and
compliance and remediation commitments, in addition to
payment of a monetary penalty. If the company complies
with the agreement throughout its term, DOJ does not file
criminal charges. If an individual complies with the terms
of his or her NPA, namely, truthful and complete cooperation
and continued law-abiding conduct, DOJ will not pursue
criminal charges.
Declinations
As discussed above, DOJ’s decision to bring or decline
to bring an enforcement action under the FCPA is made
pursuant to the Principles of Federal Prosecution, in the case
of individuals, and the Principles of Federal Prosecution
of Business Organizations, in the case of companies. As
described, in the case of individuals, the Principles of Federal
Prosecution advise prosecutors to weigh all relevant considerations,
including:
• federal law enforcement priorities;
• the nature and seriousness of the offense;
• the deterrent effect of prosecution;
• the person’s culpability in connection with the
offense;
• the person’s history of criminal activity;
• the person’s willingness to cooperate in the investigation
or prosecution of others; and
• the probable sentence or other consequences if the
person is convicted. 380
The Principles of Federal Prosecution provide additional
commentary about each of these factors. For
instance, they explain that prosecutors should take into
account federal law enforcement priorities because federal
law enforcement and judicial resources are not sufficient
to permit prosecution of every alleged offense over which
federal jurisdiction exists. The deterrent effect of prosecution
should also be kept in mind because some offenses,
“although seemingly not of great importance by themselves,
if commonly committed would have a substantial cumulative
impact on the community.” 381
As discussed above, the Principles of Federal
Prosecution of Business Organizations require prosecutors to
consider nine factors when determining whether to prosecute
a corporate entity for an FCPA violation, including the
nature and seriousness of the offense; the pervasiveness of
wrongdoing within the company; the company’s history of
similar conduct; the existence and effectiveness of the company’s
pre-existing compliance program; and the adequacy
of remedies, such as civil or regulatory enforcement actions.
Pursuant to these guidelines, DOJ has declined to
prosecute both individuals and corporate entities in numerous
cases based on the particular facts and circumstances
presented in those matters, taking into account the available
evidence. 382 To protect the privacy rights and other
interests of the uncharged and other potentially interested
parties, DOJ has a long-standing policy not to provide,
without the party’s consent, non-public information on
matters it has declined to prosecute. To put DOJ’s declinations
in context, however, in the past two years alone, DOJ
has declined several dozen cases against companies where
potential FCPA violations were alleged.
As mentioned above, there are rare occasions in
which, in conjunction with the public filing of charges
against an individual, it is appropriate to disclose that a
company is not also being prosecuted. That was done in a
recent case where a former employee was charged but the
former corporate employer was not. 383
75
What Are the Different Types of
Resolutions with SEC?
Civil Injunctive Actions and Remedies
In a civil injunctive action, SEC seeks a court order
compelling the defendant to obey the law in the future.
Violating such an order can result in civil or criminal contempt
proceedings. Civil contempt sanctions, brought by
SEC, are remedial rather than punitive in nature and serve
one of two purposes: to compensate the party injured as a
result of the violation of the injunction or force compliance
with the terms of the injunction.
Where a defendant has profited from a violation of
law, SEC can obtain the equitable relief of disgorgement
of ill-gotten gains and pre-judgment interest and can also
obtain civil money penalties pursuant to Sections 21(d)(3)
and 32(c) of the Exchange Act. SEC may also seek ancillary
relief (such as an accounting from a defendant). Pursuant
to Section 21(d)(5), SEC also may seek, and any federal
court may grant, any other equitable relief that may be
appropriate or necessary for the benefit of investors, such
as enhanced remedial measures or the retention of an independent
compliance consultant or monitor.
Civil Administrative Actions and Remedies
SEC has the ability to institute various types of administrative
proceedings against a person or an entity that it
believes has violated the law. This type of enforcement action
is brought by SEC’s Enforcement Division and is litigated
before an SEC administrative law judge (ALJ). The ALJ’s
decision is subject to appeal directly to the Securities and
Exchange Commission itself, and the Commission’s decision
is in turn subject to review by a U.S. Court of Appeals.
Administrative proceedings provide for a variety of
relief. For regulated persons and entities, such as brokerdealers
and investment advisers and persons associated with
them, sanctions include censure, limitation on activities,
suspension of up to twelve months, and bar from association
or revocation of registration. For professionals such as
attorneys and accountants, SEC can order in Rule 102(e)
chapter 7
Resolutions
proceedings that the professional be censured, suspended,
or barred from practicing before SEC. 384 SEC staff can seek
an order from an administrative law judge requiring the
respondent to cease and desist from any current or future
violations of the securities laws. In addition, SEC can obtain
disgorgement, pre-judgment interest, and civil money penalties
in administrative proceedings under Section 21B
of the Exchange Act, and also can obtain other equitable
relief, such as enhanced remedial measures or the retention
of an independent compliance consultant or monitor.
Deferred Prosecution Agreements
A deferred prosecution agreement is a written agreement
between SEC and a potential cooperating individual
or company in which SEC agrees to forego an enforcement
action against the individual or company if the individual
or company agrees to, among other things: (1) cooperate
truthfully and fully in SEC’s investigation and related
enforcement actions; (2) enter into a long-term tolling
agreement; (3) comply with express prohibitions and/
or undertakings during a period of deferred prosecution;
and (4) under certain circumstances, agree either to admit
or not to contest underlying facts that SEC could assert
to establish a violation of the federal securities laws. If the
agreement is violated during the period of deferred prosecution,
SEC staff may recommend an enforcement action to
the Commission against the individual or company for the
original misconduct as well as any additional misconduct.
Furthermore, if the Commission authorizes the enforcement
action, SEC staff may use any factual admissions
made by the cooperating individual or company in support
of a motion for summary judgment, while maintaining the
ability to bring an enforcement action for any additional
misconduct at a later date.
76
In May of 2011, SEC entered into its first deferred
prosecution agreement against a company for violating the
FCPA. 385 In that case, a global manufacturer of steel pipe
products violated the FCPA by bribing Uzbekistan government
officials during a bidding process to supply pipelines
for transporting oil and natural gas. The company made
almost $5 million in profits when it was subsequently
awarded several contracts by the Uzbekistan government.
The company discovered the misconduct during a worldwide
review of its operations and brought it to the government’s
attention. In addition to self-reporting, the company
conducted a thorough internal investigation; provided
complete, real-time cooperation with SEC and DOJ staff;
and undertook extensive remediation, including enhanced
anti-corruption procedures and training. Under the terms
of the DPA, the company paid $5.4 million in disgorgement
and prejudgment interest. The company also paid a
$3.5 million monetary penalty to resolve a criminal investigation
by DOJ through an NPA. 386
For further information about deferred prosecution
agreements, see SEC’s Enforcement Manual. 387
Non-Prosecution Agreements
A non-prosecution agreement is a written agreement
between SEC and a potential cooperating individual or company,
entered into in limited and appropriate circumstances,
that provides that SEC will not pursue an enforcement
action against the individual or company if the individual or
company agrees to, among other things: (1) cooperate truthfully
and fully in SEC’s investigation and related enforcement
actions; and (2) comply, under certain circumstances,
with express undertakings. If the agreement is violated, SEC
staff retains its ability to recommend an enforcement action
to the Commission against the individual or company.
For further information about non-prosecution
agreements, see SEC’s Enforcement Manual. 388
Enforcement Manual. The same factors that apply to SEC
staff ’s determination of whether to recommend an enforcement
action against an individual or entity apply to the
decision to close an investigation without recommending
enforcement action. 389
Generally, SEC staff considers, among other things:
• the seriousness of the conduct and potential violations;
• the resources available to SEC staff to pursue the
investigation;
• the sufficiency and strength of the evidence;
• the extent of potential investor harm if an action is
not commenced; and
• the age of the conduct underlying the potential
violations.
SEC has declined to take enforcement action against
both individuals and companies based on the facts and circumstances
present in those matters, where, for example,
the conduct was not egregious, the company fully cooperated,
and the company identified and remediated the
misconduct quickly. SEC Enforcement Division policy is
to notify individuals and entities at the earliest opportunity
when the staff has determined not to recommend an
enforcement action against them to the Commission. This
notification takes the form of a termination letter.
In order to protect the privacy rights and other interests
of the uncharged and other potentially interested parties,
SEC does not provide non-public information on matters
it has declined to prosecute.
What Are Some Examples of Past
Declinations by DOJ and SEC?
Neither DOJ nor SEC typically publicizes declinations
but, to provide some insight into the process, the following
are recent, anonymized examples of matters DOJ
and SEC have declined to pursue:
Termination Letters and Declinations
As discussed above, SEC’s decision to bring or
decline to bring an enforcement action under the FCPA is
made pursuant to the guiding principles set forth in SEC’s
Example 1: Public Company Declination
DOJ and SEC declined to take enforcement action
against a public U.S. company. Factors taken into consideration
included:
77
• The company discovered that its employees had
received competitor bid information from a third
party with connections to the foreign government.
• The company began an internal investigation,
withdrew its contract bid, terminated the employees
involved, severed ties to the third-party agent, and
voluntarily disclosed the conduct to DOJ’s Antitrust
Division, which also declined prosecution.
• During the internal investigation, the company
uncovered various FCPA red flags, including prior
concerns about the third-party agent, all of which
the company voluntarily disclosed to DOJ and SEC.
• The company immediately took substantial steps to
improve its compliance program.
Example 2: Public Company Declination
DOJ and SEC declined to take enforcement action
against a public U.S. company. Factors taken into consideration
included:
• With knowledge of employees of the company’s
subsidiary, a retained construction company
paid relatively small bribes, which were wrongly
approved by the company’s local law firm, to foreign
building code inspectors.
• When the company’s compliance department
learned of the bribes, it immediately ended the
conduct, terminated its relationship with the construction
company and law firm, and terminated or
disciplined the employees involved.
• The company completed a thorough internal investigation
and voluntarily disclosed to DOJ and SEC.
• The company reorganized its compliance department,
appointed a new compliance officer dedicated
to anti-corruption, improved the training
and compliance program, and undertook a
review of all of the company’s international thirdparty
relationships.
Example 3: Public Company Declination
DOJ and SEC declined to take enforcement action
against a U.S. publicly held industrial services company for
chapter 7
Resolutions
bribes paid by a small foreign subsidiary. Factors taken into
consideration included:
• The company self-reported the conduct to DOJ
and SEC.
• The total amount of the improper payments was
relatively small, and the activity appeared to be
an isolated incident by a single employee at the
subsidiary.
• The profits potentially obtained from the improper
payments were very small.
• The payments were detected by the company’s
existing internal controls. The company’s audit
committee conducted a thorough independent
internal investigation. The results of the investigation
were provided to the government.
• The company cooperated fully with investigations
by DOJ and SEC.
• The company implemented significant remedial
actions and enhanced its internal control structure.
Example 4: Public Company Declination
DOJ and SEC declined to take enforcement action
against a U.S. publicly held oil-and-gas services company
for small bribes paid by a foreign subsidiary’s customs agent.
Factors taken into consideration included:
• The company’s internal controls timely detected a
potential bribe before a payment was made.
• When company management learned of the
potential bribe, management immediately reported
the issue to the company’s General Counsel and
Audit Committee and prevented the payment from
occurring.
• Within weeks of learning of the attempted bribe,
the company provided in-person FCPA training
to employees of the subsidiary and undertook
78
an extensive internal investigation to determine
whether any of the company’s subsidiaries in the
same region had engaged in misconduct.
• The company self-reported the misconduct and the
results of its internal investigation to DOJ and SEC.
• The company cooperated fully with investigations
by DOJ and SEC.
• In addition to the immediate training at the relevant
subsidiary, the company provided comprehensive
FCPA training to all of its employees and conducted
an extensive review of its anti-corruption compliance
program.
• The company enhanced its internal controls and
record-keeping policies and procedures, including
requiring periodic internal audits of customs
payments.
• As part of its remediation, the company directed that
local lawyers rather than customs agents be used to
handle its permits, with instructions that “no matter
what, we don’t pay bribes”—a policy that resulted in
a longer and costlier permit procedure.
Example 5: Public Company Declination
DOJ and SEC declined to take enforcement action
against a U.S. publicly held consumer products company
in connection with its acquisition of a foreign company.
Factors taken into consideration included:
• The company identified the potential improper
payments to local government officials as part of its
pre-acquisition due diligence.
• The company promptly developed a comprehensive
plan to investigate, correct, and remediate any
FCPA issues after acquisition.
• The company promptly self-reported the issues prior
to acquisition and provided the results of its investigation
to the government on a real-time basis.
• The acquiring company’s existing internal controls
and compliance program were robust.
• After the acquisition closed, the company implemented
a comprehensive remedial plan, ensured
that all improper payments stopped, provided
extensive FCPA training to employees of the new
subsidiary, and promptly incorporated the new
subsidiary into the company’s existing internal
controls and compliance environment.
Example 6: Private Company Declination
In 2011, DOJ declined to take prosecutorial action
against a privately held U.S. company and its foreign subsidiary.
Factors taken into consideration included:
• The company voluntarily disclosed bribes paid to
social security officials in a foreign country.
• The total amount of the bribes was small.
• When discovered, the corrupt practices were immediately
terminated.
• The conduct was thoroughly investigated, and the
results of the investigation were promptly provided
to DOJ.
• All individuals involved were either terminated
or disciplined. The company also terminated its
relationship with its foreign law firm.
• The company instituted improved training and
compliance programs commensurate with its size
and risk exposure.
79
chapter 7
Resolutions
80

chapter 8
Whistleblower
Provisions and
Protections
WHISTLEBLOWER PROVISIONS
AND PROTECTIONS
Assistance and information from a whistleblower who knows of possible securities
law violations can be among the most powerful weapons in the law enforcement
arsenal. Through their knowledge of the circumstances and individuals
involved, whistleblowers can help SEC and DOJ identify potential violations
much earlier than might otherwise have been possible, thus allowing SEC and
DOJ to minimize the harm to investors, better preserve the integrity of the
U.S. capital markets, and more swiftly hold accountable those responsible for
unlawful conduct.
The Sarbanes-Oxley Act of 2002 and the Dodd-Frank
Act of 2010 both contain provisions affecting whistleblowers
who report FCPA violations. Sarbanes-Oxley prohibits
issuers from retaliating against whistleblowers and provides
that employees who are retaliated against for reporting possible
securities law violations may file a complaint with the
Department of Labor, for which they would be eligible to
receive reinstatement, back pay, and other compensation. 390
Sarbanes-Oxley also prohibits retaliation against employee
whistleblowers under the obstruction of justice statute. 391
In 2010, the Dodd-Frank Act added Section 21F to
the Exchange Act, addressing whistleblower incentives and
protections. Section 21F authorizes SEC to provide monetary
awards to eligible individuals who voluntarily come
forward with high quality, original information that leads
to an SEC enforcement action in which over $1,000,000 in
sanctions is ordered. 392 The awards range is between 10%
and 30% of the monetary sanctions recovered by the government.
The Dodd-Frank Act also prohibits employers
from retaliating against whistleblowers and creates a private
right of action for employees who are retaliated against. 393
Furthermore, businesses should be aware that retaliation
against a whistleblower may also violate state, local,
and foreign laws that provide protection of whistleblowers.
82
On August 12, 2011, the final rules for SEC’s
Whistleblower Program became effective. These rules set
forth the requirements for whistleblowers to be eligible for
awards consideration, the factors that SEC will use to determine
the amount of the award, the categories of individuals
who are excluded from award consideration, and the categories
of individuals who are subject to limitations in award
considerations. 394 The final rules strengthen incentives for
employees to report the suspected violations internally
through internal compliance programs when appropriate,
although it does not require an employee to do so in order
to qualify for an award. 395
Individuals with information about a possible violation
of the federal securities laws, including FCPA violations,
should submit that information to SEC either online
through SEC’s Tips, Complaints, and Referrals (TCR)
Intake and Resolution System (available at https://denebleo.sec.gov/TCRExternal/disclaimer.xhtml)
or by mailing
or faxing a completed Form TCR to the Commission’s
Office of the Whistleblower.
Whistleblowers can submit information anonymously.
To be considered under SEC’s whistleblower program
as eligible for a reward, however, the information
must be submitted on an anonymous whistleblower’s behalf
by an attorney. 396 Whether or not a whistleblower reports
anonymously, SEC is committed to protecting the identity
of a whistleblower to the fullest extent possible under the
statute. 397 SEC’s Office of the Whistleblower administers
SEC’s Whistleblower Program and answers questions from
the public regarding the program. Additional information
regarding SEC’s Whistleblower Program, including
answers to frequently asked questions, is available online at
http://www.sec.gov/whistleblower.
SEC Office of the Whistleblower
100 F Street NE, Mail Stop 5971
Washington, DC 20549
Facsimile: (703) 813-9322
Online Report Form: http://www.sec.gov/
whistleblower
83
chapter 8
Whistleblower
Provisions and
Protections
84

chapter 9
DOJ Opinion
Procedure
DOJ OPINION PROCEDURE
DOJ’s opinion procedure is a valuable mechanism for companies and individuals
to determine whether proposed conduct would be prosecuted by DOJ
under the FCPA. 398 Generally speaking, under the opinion procedure process,
parties submit information to DOJ, after which DOJ issues an opinion about
whether the proposed conduct falls within its enforcement policy. All of DOJ’s
prior opinions are available online. 399 Parties interested in obtaining such an
opinion should follow these steps: 400
First, those seeking an opinion should evaluate whether
their question relates to actual, prospective conduct. 401 The
opinion procedure cannot be used to obtain opinions on
purely historical conduct or on hypothetical questions. DOJ
will not consider a request unless that portion of the transaction
for which an opinion is sought involves only prospective
conduct, although the transaction as a whole may have components
that already have occurred. An executed contract
is not a prerequisite and, in most—if not all—instances, an
opinion request should be made before the requestor commits
to proceed with a transaction. 402 Those seeking requests
should be aware that FCPA opinions relate only to the
FCPA’s anti-bribery provisions. 403
Second, before making the request, the company or
individual should check that they are either an issuer or a
domestic concern, as only those categories of parties can
receive an opinion. 404 If the transaction involves more than
one issuer or domestic concern, consider making a request
for an opinion jointly, as opinions only apply to the parties
that request them. 405
Third, those seeking an opinion must put their request
in writing. The request must be specific and accompanied
by all relevant and material information bearing on the conduct
and circumstances for which an opinion is requested.
Material information includes background information,
complete copies of all operative documents, and detailed
statements of all collateral or oral understandings, if any.
Those seeking opinions are under an affirmative obligation
to make full and true disclosures. 406 Materials disclosed to
DOJ will not be made public without the consent of the
party submitting them. 407
86
Fourth, the request must be signed. For corporate
requestors, the signatory should be an appropriate senior
officer with operational responsibility for the conduct that is
the subject of the request and who has been designated by the
corporation’s chief executive officer. In appropriate cases, DOJ
also may require the chief executive officer to sign the request.
Those signing the request must certify that it contains a true,
correct, and complete disclosure with respect to the proposed
conduct and the circumstances of the conduct. 408
Fifth, an original and five copies of the request should
be addressed to the Assistant Attorney General in charge of
the Criminal Division, Attention: FCPA Opinion Group. 409
The mailing address is P.O. Box 28188 Central Station,
Washington, D.C. 20038. DOJ also asks that you send an
electronic courtesy copy to FCPA.Fraud@usdoj.gov.
DOJ will evaluate the request for an FCPA opinion. 410
A party may withdraw a request for an opinion at any time
prior to the release of an opinion. 411 If the request is complete
and all the relevant information has been submitted, DOJ will
respond to the request by issuing an opinion within 30 days. 412
If the request is incomplete, DOJ will identify for the requestor
what additional information or documents are required for
DOJ to review the request. Such information must be provided
to DOJ promptly. Once the additional information has
been received, DOJ will issue an opinion within 30 days of
receipt of that additional information. 413 DOJ’s FCPA opinions
state whether, for purposes of DOJ’s present enforcement
policy, the prospective conduct would violate either the issuer
or domestic concern anti-bribery provisions of the FCPA. 414
DOJ also may take other positions in the opinion as it considers
appropriate. 415 To the extent that the opinion concludes
that the proposed conduct would not violate the FCPA, a
rebuttable presumption is created that the requestor’s conduct
that was the basis of the opinion is in compliance with
the FCPA. 416 In order to provide non-binding guidance to the
business community, DOJ makes versions of its opinions publicly
available on its website. 417
If, after receiving an opinion, a party is concerned about
prospective conduct that is beyond the scope of conduct specified
in a previous request, the party may submit an additional
request for an opinion using the procedures outlined above. 418
87
chapter 9
DOJ Opinion
Procedure
88

chapter 10
Conclusion
CONCLUSION
The FCPA was designed to prevent corrupt practices, protect investors,
and provide a fair playing field for those honest companies trying to win business
based on quality and price rather than bribes. Following Congress’ leadership
in enacting the FCPA 35 years ago, and through determined international
diplomatic and law enforcement efforts in the time since, laws like the FCPA
prohibiting foreign bribery have been enacted by most of the United States’
major trading partners.
This guide is designed to provide practical advice about, and useful insights
into, our enforcement considerations. For businesses desiring to compete
fairly in foreign markets, it is our goal to maximize those businesses’ ability
to comply with the FCPA in the most effective and efficient way suitable to their
business and the markets in which they operate. Through our ongoing efforts
with the U.S. and international business and legal communities and nongovernmental
organizations, DOJ and SEC can continue effectively to protect
the integrity of our markets and reduce corruption around the world.
90

APPENDIX
The Foreign
Corrupt
Practices Act
THE FOREIGN CORRUPT
PRACTICES ACT:
15 U.S.C. §§ 78dd-1, 78dd-2, 78dd-3, 78m, 78ff
15 U.S.C. § 78dd-1 [Section 30A of the Securities Exchange Act of
1934] Prohibited foreign trade practices by issuers
(a) Prohibition
It shall be unlawful for any issuer which has a class of securities registered
pursuant to section 78l of this title or which is required to file
reports under section 78o(d) of this title, or for any officer, director,
employee, or agent of such issuer or any stockholder thereof acting
on behalf of such issuer, 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 to—
(1) any foreign official for purposes 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;
(2) any foreign political party or official thereof or any candidate for
foreign political office for purposes of—
(A) (i) influencing any act or decision of such party, official, or candidate
in its or his official capacity, (ii) inducing such party, official, or
candidate to do or omit to do an act in violation of the lawful duty of
such party, official, or candidate, or (iii) securing any improper advantage;
or
(B) inducing such party, official, or candidate to use its or 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; or
(3) any person, 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, for purposes of—
(A) (i) influencing any act or decision of such foreign official, political
party, party official, or candidate in his or its official capacity, (ii)
inducing such foreign official, political party, party official, or candidate
to do or omit to do any act in violation of the lawful duty of
such foreign official, political party, party official, or candidate, or (iii)
securing any improper advantage; or
(B) inducing such foreign official, political party, party official, or
92
candidate to use his or its 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.
(b) Exception for routine governmental action
Subsections (a) and (g) of this section shall not apply to any facilitating
or expediting payment to a foreign official, political party, or party
official the purpose of which is to expedite or to secure the performance
of a routine governmental action by a foreign official, political
party, or party official.
(c) Affirmative defenses
It shall be an affirmative defense to actions under subsection (a) or (g)
of this section that—
(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; 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—
(A) the promotion, demonstration, or explanation of products or services;
or
(B) the execution or performance of a contract with a foreign government
or agency thereof.
(d) Guidelines by Attorney General
Not later than one year after August 23, 1988, the Attorney General,
after consultation with the Commission, the Secretary of Commerce,
the United States Trade Representative, the Secretary of State, and the
Secretary of the Treasury, and after obtaining the views of all interested
persons through public notice and comment procedures, shall determine
to what extent compliance with this section would be enhanced
and the business community would be assisted by further clarification of
the preceding provisions of this section and may, based on such determination
and to the extent necessary and appropriate, issue—
(1) guidelines describing specific types of conduct, associated with
common types of export sales arrangements and business contracts,
which for purposes of the Department of Justice’s present enforcement
policy, the Attorney General determines would be in conformance
with the preceding provisions of this section; and
(2) general precautionary procedures which issuers may use on a voluntary
basis to conform their conduct to the Department of Justice’s
present enforcement policy regarding the preceding provisions of this
section. The Attorney General shall issue the guidelines and procedures
referred to in the preceding sentence in accordance with the provisions
of subchapter II of chapter 5 of Title 5 and those guidelines and procedures
shall be subject to the provisions of chapter 7 of that title.
(e) Opinions of Attorney General
(1) The Attorney General, after consultation with appropriate departments
and agencies of the United States and after obtaining the views
of all interested persons through public notice and comment procedures,
shall establish a procedure to provide responses to specific
inquiries by issuers concerning conformance of their conduct with the
Department of Justice’s present enforcement policy regarding the preceding
provisions of this section. The Attorney General shall, within
30 days after receiving such a request, issue an opinion in response
to that request. The opinion shall state whether or not certain specified
prospective conduct would, for purposes of the Department of
Justice’s present enforcement policy, violate the preceding provisions
of this section. Additional requests for opinions may be filed with the
Attorney General regarding other specified prospective conduct that
is beyond the scope of conduct specified in previous requests. In any
action brought under the applicable provisions of this section, there
shall be a rebuttable presumption that conduct, which is specified in a
request by an issuer and for which the Attorney General has issued an
opinion that such conduct is in conformity with the Department of
Justice’s present enforcement policy, is in compliance with the preceding
provisions of this section. Such a presumption may be rebutted by
a preponderance of the evidence. In considering the presumption for
purposes of this paragraph, a court shall weight all relevant factors,
including but not limited to whether the information submitted to
the Attorney General was accurate and complete and whether it was
within the scope of the conduct specified in any request received by
the Attorney General. The Attorney General shall establish the procedure
required by this paragraph in accordance with the provisions
of subchapter II of chapter 5 of Title 5 and that procedure shall be
subject to the provisions of chapter 7 of that title.
(2) Any document or other material which is provided to, received by,
or prepared in the Department of Justice or any other department or
agency of the United States in connection with a request by an issuer
under the procedure established under paragraph (1), shall be exempt
from disclosure under section 552 of Title 5 and shall not, except
with the consent of the issuer, be made publicly available, regardless of
whether the Attorney General responds to such a request or the issuer
withdraws such request before receiving a response.
(3) Any issuer who has made a request to the Attorney General
under paragraph (1) may withdraw such request prior to the time the
Attorney General issues an opinion in response to such request. Any
request so withdrawn shall have no force or effect.
(4) The Attorney General shall, to the maximum extent practicable,
provide timely guidance concerning the Department of Justice’s
93
present enforcement policy with respect to the preceding provisions
of this section to potential exporters and small businesses that
are unable to obtain specialized counsel on issues pertaining to such
provisions. Such guidance shall be limited to responses to requests
under paragraph (1) concerning conformity of specified prospective
conduct with the Department of Justice’s present enforcement policy
regarding the preceding provisions of this section and general explanations
of compliance responsibilities and of potential liabilities under
the preceding provisions of this section.
(v) actions of a similar nature.
APPENDIX
The Foreign
Corrupt
Practices Act
(f ) Definitions
For purposes of this section:
(1)(A) The term “foreign official” means any officer or employee of
a foreign government or any department, agency, or instrumentality
thereof, or of a public international organization, or any person acting
in an official capacity for or on behalf of any such government or
department, agency, or instrumentality, or for or on behalf of any such
public international organization.
(B) For purposes of subparagraph (A), the term “public international
organization” means—
(i) an organization that is designated by Executive Order pursuant
to section 1 of the International Organizations Immunities Act (22
U.S.C. § 288); or
(ii) any other international organization that is designated by the
President by Executive order for the purposes of this section, effective
as of the date of publication of such order in the Federal Register.
(2) (A) A person’s state of mind is “knowing” with respect to conduct,
a circumstance, or a result if—
(i) such person is aware that such person is engaging in such conduct,
that such circumstance exists, or that such result is substantially certain
to occur; or
(ii) such person has a firm belief that such circumstance exists or that
such result is substantially certain to occur.
(B) When knowledge of the existence of a particular circumstance is
required for an offense, such knowledge is established if a person is
aware of a high probability of the existence of such circumstance, unless
the person actually believes that such circumstance does not exist.
(3)(A) The term “routine governmental action” means only an action
which is ordinarily and commonly performed by a foreign official in—
(i) obtaining permits, licenses, or other official documents to qualify a
person to do business in a foreign country;
(ii) processing governmental papers, such as visas and work orders;
(iii) providing police protection, mail pick-up and delivery, or scheduling
inspections associated with contract performance or inspections
related to transit of goods across country;
(iv) providing phone service, power and water supply, loading and
unloading cargo, or protecting perishable products or commodities
from deterioration; or
(B) The term “routine governmental action” does not include any
decision by a foreign official whether, or on what terms, to award
new business to or to continue business with a particular party, or
any action taken by a foreign official involved in the decision-making
process to encourage a decision to award new business to or continue
business with a particular party.
(g) Alternative Jurisdiction
(1) It shall also be unlawful for any issuer organized under the laws of
the United States, or a State, territory, possession, or commonwealth
of the United States or a political subdivision thereof and which has
a class of securities registered pursuant to section 78l of this title or
which is required to file reports under section 78o(d)) of this title, or
for any United States person that is an officer, director, employee, or
agent of such issuer or a stockholder thereof acting on behalf of such
issuer, to corruptly do any act outside the United States 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 to any of the persons or entities set forth
in paragraphs (1), (2), and (3) of this subsection (a) of this section
for the purposes set forth therein, irrespective of whether such issuer
or such officer, director, employee, agent, or stockholder makes use
of the mails or any means or instrumentality of interstate commerce
in furtherance of such offer, gift, payment, promise, or authorization.
(2) As used in this subsection, the term “United States person” means
a national of the United States (as defined in section 101 of the
Immigration and Nationality Act (8 U.S.C. § 1101)) or any corporation,
partnership, association, joint-stock company, business trust,
unincorporated organization, or sole proprietorship organized under
the laws of the United States or any State, territory, possession, or commonwealth
of the United States, or any political subdivision thereof.
15 U.S.C. § 78dd-2 Prohibited foreign trade practices by domestic
concerns
(a) Prohibition
It shall be unlawful for any domestic concern, other than an issuer
which is subject to section 78dd-1 of this title, or for any officer, director,
employee, or agent of such domestic concern or any stockholder
thereof acting on behalf of such domestic concern, to make use of
the mails or any means or instrumentality of interstate commerce
94
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 to—
(1) any foreign official for purposes 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 domestic concern in obtaining or retaining business for or with,
or directing business to, any person; or
(2) any foreign political party or official thereof or any candidate for
foreign political office for purposes of—
(A) (i) influencing any act or decision of such party, official, or candidate
in its or his official capacity, (ii) inducing such party, official, or candidate
to do or omit to do an act in violation of the lawful duty of such
party, official, or candidate, or (iii) securing any improper advantage; or
(B) inducing such party, official, or candidate to use its or 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 domestic concern in obtaining or retaining business
for or with, or directing business to, any person;
(3) any person, 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, for purposes of—
(A) (i) influencing any act or decision of such foreign official, political
party, party official, or candidate in his or its official capacity, (ii)
inducing such foreign official, political party, party official, or candidate
to do or omit to do any act in violation of the lawful duty of
such foreign official, political party, party official, or candidate, or (iii)
securing any improper advantage; or
(B) inducing such foreign official, political party, party official, or
candidate to use his or its 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 domestic
concern in obtaining or retaining business for or with, or directing
business to, any person.
(b) Exception for routine governmental action
Subsections (a) and (i) of this section shall not apply to any facilitating
or expediting payment to a foreign official, political party, or party
official the purpose of which is to expedite or to secure the performance
of a routine governmental action by a foreign official, political
party, or party official.
(c) Affirmative defenses
It shall be an affirmative defense to actions under subsection (a) or (i)
of this section that—
(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; 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—
(A) the promotion, demonstration, or explanation of products or services;
or
(B) the execution or performance of a contract with a foreign government
or agency thereof.
(d) Injunctive relief
(1) When it appears to the Attorney General that any domestic concern
to which this section applies, or officer, director, employee, agent,
or stockholder thereof, is engaged, or about to engage, in any act or
practice constituting a violation of subsection (a) or (i) of this section,
the Attorney General may, in his discretion, bring a civil action
in an appropriate district court of the United States to enjoin such act
or practice, and upon a proper showing, a permanent injunction or a
temporary restraining order shall be granted without bond.
(2) For the purpose of any civil investigation which, in the opinion of
the Attorney General, is necessary and proper to enforce this section,
the Attorney General or his designee are empowered to 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.
The attendance of witnesses and the production of documentary evidence
may be required from any place in the United States, or any
territory, possession, or commonwealth of the United States, at any
designated place of hearing.
(3) In case of contumacy by, or refusal to obey a subpoena issued to,
any person, the Attorney General may invoke the aid of any court of
the United States within the jurisdiction of which such investigation
or proceeding is carried on, or where such person resides or carries
on business, in requiring the attendance and testimony of witnesses
and the production of books, papers, or other documents. Any such
court may issue an order requiring such person to appear before the
Attorney General or his designee, there to produce records, if so
95
ordered, or to give testimony touching the matter under investigation.
Any failure to obey such order of the court may be punished by such
court as a contempt thereof. All process in any such case may be served
in the judicial district in which such person resides or may be found.
The Attorney General may make such rules relating to civil investigations
as may be necessary or appropriate to implement the provisions
of this subsection.
(e) Guidelines by Attorney General
Not later than 6 months after August 23, 1988, the Attorney General,
after consultation with the Securities and Exchange Commission, the
Secretary of Commerce, the United States Trade Representative, the
Secretary of State, and the Secretary of the Treasury, and after obtaining
the views of all interested persons through public notice and comment
procedures, shall determine to what extent compliance with
this section would be enhanced and the business community would
be assisted by further clarification of the preceding provisions of this
section and may, based on such determination and to the extent necessary
and appropriate, issue—
(1) guidelines describing specific types of conduct, associated with
common types of export sales arrangements and business contracts,
which for purposes of the Department of Justice’s present enforcement
policy, the Attorney General determines would be in conformance
with the preceding provisions of this section; and
(2) general precautionary procedures which domestic concerns may
use on a voluntary basis to conform their conduct to the Department
of Justice’s present enforcement policy regarding the preceding provisions
of this section.
The Attorney General shall issue the guidelines and procedures
referred to in the preceding sentence in accordance with the provisions
of subchapter II of chapter 5 of Title 5 and those guidelines and
procedures shall be subject to the provisions of chapter 7 of that title.
(f ) Opinions of Attorney General
(1) The Attorney General, after consultation with appropriate departments
and agencies of the United States and after obtaining the views of
all interested persons through public notice and comment procedures,
shall establish a procedure to provide responses to specific inquiries by
domestic concerns concerning conformance of their conduct with the
Department of Justice’s present enforcement policy regarding the preceding
provisions of this section. The Attorney General shall, within
30 days after receiving such a request, issue an opinion in response to
that request. The opinion shall state whether or not certain specified
prospective conduct would, for purposes of the Department of Justice’s
present enforcement policy, violate the preceding provisions of this section.
Additional requests for opinions may be filed with the Attorney
General regarding other specified prospective conduct that is beyond
the scope of conduct specified in previous requests. In any action
brought under the applicable provisions of this section, there shall be
a rebuttable presumption that conduct, which is specified in a request
by a domestic concern and for which the Attorney General has issued
an opinion that such conduct is in conformity with the Department of
Justice’s present enforcement policy, is in compliance with the preceding
provisions of this section. Such a presumption may be rebutted by a
preponderance of the evidence. In considering the presumption for purposes
of this paragraph, a court shall weigh all relevant factors, including
but not limited to whether the information submitted to the Attorney
General was accurate and complete and whether it was within the
scope of the conduct specified in any request received by the Attorney
General. The Attorney General shall establish the procedure required
by this paragraph in accordance with the provisions of subchapter II of
chapter 5 of Title 5 and that procedure shall be subject to the provisions
of chapter 7 of that title.
(2) Any document or other material which is provided to, received by,
or prepared in the Department of Justice or any other department or
agency of the United States in connection with a request by a domestic
concern under the procedure established under paragraph (1), shall
be exempt from disclosure under section 552 of Title 5 and shall not,
except with the consent of the domestic concern, by made publicly
available, regardless of whether the Attorney General response to
such a request or the domestic concern withdraws such request before
receiving a response.
(3) Any domestic concern who has made a request to the Attorney
General under paragraph (1) may withdraw such request prior to
the time the Attorney General issues an opinion in response to such
request. Any request so withdrawn shall have no force or effect.
(4) The Attorney General shall, to the maximum extent practicable,
provide timely guidance concerning the Department of Justice’s present
enforcement policy with respect to the preceding provisions of
this section to potential exporters and small businesses that are unable
to obtain specialized counsel on issues pertaining to such provisions.
Such guidance shall be limited to responses to requests under paragraph
(1) concerning conformity of specified prospective conduct
with the Department of Justice’s present enforcement policy regarding
the preceding provisions of this section and general explanations
of compliance responsibilities and of potential liabilities under the
preceding provisions of this section.
(g) Penalties
(1)(A) Any domestic concern that is not a natural person and that
violates subsection (a) or (i) of this section shall be fined not more
than $2,000,000.
APPENDIX
The Foreign
Corrupt
Practices Act
96
(B) Any domestic concern that is not a natural person and that violates
subsection (a) or (i) of this section shall be subject to a civil penalty
of not more than $10,000 imposed in an action brought by the
Attorney General.
(2)(A) Any natural person that is an officer, director, employee, or
agent of a domestic concern, or stockholder acting on behalf of such
domestic concern, who willfully violates subsection (a) or (i) of this
section shall be fined not more than $100,000 or imprisoned not
more than 5 years, or both.
(B) Any natural person that is an officer, director, employee, or agent
of a domestic concern, or stockholder acting on behalf of such domestic
concern, who violates subsection (a) or (i) of this section shall be
subject to a civil penalty of not more than $10,000 imposed in an
action brought by the Attorney General.
(3) Whenever a fine is imposed under paragraph (2) upon any officer,
director, employee, agent, or stockholder of a domestic concern, such
fine may not be paid, directly or indirectly, by such domestic concern.
(h) Definitions
For purposes of this section:
(1) The term “domestic concern” means—
(A) any individual who is a citizen, national, or resident of the United
States; and
(B) any corporation, partnership, association, joint-stock company,
business trust, unincorporated organization, or sole proprietorship
which has its principal place of business in the United States, or which
is organized under the laws of a State of the United States or a territory,
possession, or commonwealth of the United States.
(2)(A) The term “foreign official” means any officer or employee of
a foreign government or any department, agency, or instrumentality
thereof, or of a public international organization, or any person acting
in an official capacity for or on behalf of any such government or
department, agency, or instrumentality, or for or on behalf of any such
public international organization.
(B) For purposes of subparagraph (A), the term “public international
organization” means—
(i) an organization that has been designated by Executive order pursuant
to Section 1 of the International Organizations Immunities Act
(22 U.S.C. § 288); or
(ii) any other international organization that is designated by the
President by Executive order for the purposes of this section, effective
as of the date of publication of such order in the Federal Register.
(3)(A) A person’s state of mind is “knowing” with respect to conduct,
a circumstance, or a result if—
(i) such person is aware that such person is engaging in such conduct,
that such circumstance exists, or that such result is substantially certain
to occur; or
(ii) such person has a firm belief that such circumstance exists or that
such result is substantially certain to occur.
(B) When knowledge of the existence of a particular circumstance
is required for an offense, such knowledge is established if a person
is aware of a high probability of the existence of such circumstance,
unless the person actually believes that such circumstance does not
exist.
(4)(A) The term “routine governmental action” means only an action
which is ordinarily and commonly performed by a foreign official in—
(i) obtaining permits, licenses, or other official documents to qualify a
person to do business in a foreign country;
(ii) processing governmental papers, such as visas and work orders;
(iii) providing police protection, mail pick-up and delivery, or scheduling
inspections associated with contract performance or inspections
related to transit of goods across country;
(iv) providing phone service, power and water supply, loading and
unloading cargo, or protecting perishable products or commodities
from deterioration; or
(v) actions of a similar nature.
(B) The term “routine governmental action” does not include any
decision by a foreign official whether, or on what terms, to award
new business to or to continue business with a particular party, or
any action taken by a foreign official involved in the decision-making
process to encourage a decision to award new business to or continue
business with a particular party.
(5) The term “interstate commerce” means trade, commerce, transportation,
or communication among the several States, or between any
foreign country and any State or between any State and any place or
ship outside thereof, and such term includes the intrastate use of—
(A) a telephone or other interstate means of communication, or
(B) any other interstate instrumentality.
(i) Alternative Jurisdiction
(1) It shall also be unlawful for any United States person to corruptly
do any act outside the United States 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 to any of the persons or entities set forth in paragraphs
(1), (2), and (3) of subsection (a), for the purposes set forth therein,
irrespective of whether such United States person makes use of the
mails or any means or instrumentality of interstate commerce in furtherance
of such offer, gift, payment, promise, or authorization.
97
(2) As used in this subsection, a “United States person” means