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-3 Prohibited foreign trade practices by persons
other than issuers or domestic concerns
(a) Prohibition
It shall be unlawful for any person other than an issuer that is subject
to section 78dd-1 [Section 30A of the Exchange Act] of this title or
a domestic concern, or for any officer, director, employee, or agent of
such person or any stockholder thereof acting on behalf of such person,
while in the territory of the United States, corruptly to make use
of the mails or any means or instrumentality of interstate commerce or
to do any other act 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 person 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 person 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 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 person in obtaining
or retaining business for or with, or directing business to, any person.
(b) Exception for routine governmental action
Subsection (a) 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) 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 person to which
this section applies, or officer, director, employee, agent, or stockholder
thereof, is engaged, or about to engage, in any act or practice
APPENDIX
The Foreign
Corrupt
Practices Act
98
constituting a violation of subsection (a) 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
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.
(4) 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) Penalties
(1)(A) Any juridical person that violates subsection (a) of this section
shall be fined not more than $2,000,000.
(B) Any juridical person that violates subsection (a) 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 who willfully violates subsection (a) of
this section shall be fined not more than $100,000 or imprisoned not
more than 5 years, or both.
(B) Any natural person who violates subsection (a) 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 person, such fine may
not be paid, directly or indirectly, by such person.
(f ) Definitions
For purposes of this section:
(1) The term “person,” when referring to an offender, means any natural
person other than a national of the United States (as defined in
8 U.S.C. § 1101) or any corporation, partnership, association, jointstock
company, business trust, unincorporated organization, or sole
proprietorship organized under the law of a foreign nation or a political
subdivision thereof
(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.
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.
99
(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.
APPENDIX
The Foreign
Corrupt
Practices Act
(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.
* * *
15 U.S.C. § 78m [Section 13 of the Securities Exchange Act of
1934]
Periodical and other reports
(a) Reports by issuer of security; contents
Every issuer of a security registered pursuant to section 78l of this title
shall file with the Commission, in accordance with such rules and regulations
as the Commission may prescribe as necessary or appropriate
for the proper protection of investors and to insure fair dealing in the
security—
(1) such information and documents (and such copies thereof ) as the
Commission shall require to keep reasonably current the information
and documents required to be included in or filed with an application
or registration statement filed pursuant to section 78l of this title,
except that the Commission may not require the filing of any material
contract wholly executed before July 1, 1962.
(2) such annual reports (and such copies thereof ), certified if required
by the rules and regulations of the Commission by independent public
accountants, and such quarterly reports (and such copies thereof ),
as the Commission may prescribe.
Every issuer of a security registered on a national securities exchange
shall also file a duplicate original of such information, documents,
and reports with the exchange. In any registration statement, periodic
report, or other reports to be filed with the Commission, an emerging
growth company need not present selected financial data in accordance
with section 229.301 of title 17, Code of Federal Regulations,
for any period prior to the earliest audited period presented in connection
with its first registration statement that became effective
under this chapter or the Securities Act of 1933 [15 U.S.C. §§ 77a,
et seq.] and, with respect to any such statement or reports, an emerging
growth company may not be required to comply with any new
or revised financial accounting standard until such date that a company
that is not an issuer (as defined under section 7201 of this title)
is required to comply with such new or revised accounting standard, if
such standard applies to companies that are not issuers.
(b) Form of report; books, records, and internal accounting; directives
(1) The Commission may prescribe, in regard to reports made pursuant
to this chapter, the form or forms in which the required information
shall be set forth, the items or details to be shown in the balance
sheet and the earnings statement, and the methods to be followed in
the preparation of reports, in the appraisal or valuation of assets and
liabilities, in the determination of depreciation and depletion, in the
differentiation of recurring and nonrecurring income, in the differentiation
of investment and operating income, and in the preparation,
where the Commission deems it necessary or desirable, of separate
and/or consolidated balance sheets or income accounts of any person
directly or indirectly controlling or controlled by the issuer, or any
person under direct or indirect common control with the issuer; but
in the case of the reports of any person whose methods of accounting
are prescribed under the provisions of any law of the United States,
or any rule or regulation thereunder, the rules and regulations of the
Commission with respect to reports shall not be inconsistent with
the requirements imposed by such law or rule or regulation in respect
of the same subject matter (except that such rules and regulations of
the Commission may be inconsistent with such requirements to the
extent that the Commission determines that the public interest or the
protection of investors so requires).
(2) Every issuer which has a class of securities registered pursuant to
section 78l of this title and every issuer which is required to file reports
pursuant to section 78o(d) of this title shall—
(A) make and keep books, records, and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
the assets of the issuer;
(B) devise and maintain a system of internal accounting controls sufficient
to provide reasonable assurances that—
(i) transactions are executed in accordance with management’s general
or specific authorization;
(ii) transactions are recorded as necessary (I) to permit preparation of
financial statements in conformity with generally accepted accounting
100
principles or any other criteria applicable to such statements, and (II)
to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences; and
(C) notwithstanding any other provision of law, pay the allocable
share of such issuer of a reasonable annual accounting support fee or
fees, determined in accordance with section 7219 of this title.
(3)(A) With respect to matters concerning the national security of the
United States, no duty or liability under paragraph (2) of this subsection
shall be imposed upon any person acting in cooperation with the
head of any Federal department or agency responsible for such matters
if such act in cooperation with such head of a department or agency
was done upon the specific, written directive of the head of such
department or agency pursuant to Presidential authority to issue such
directives. Each directive issued under this paragraph shall set forth
the specific facts and circumstances with respect to which the provisions
of this paragraph are to be invoked. Each such directive shall,
unless renewed in writing, expire one year after the date of issuance.
(B) Each head of a Federal department or agency of the United States
who issues such a directive pursuant to this paragraph shall maintain
a complete file of all such directives and shall, on October 1 of
each year, transmit a summary of matters covered by such directives
in force at any time during the previous year to the Permanent Select
Committee on Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate.
(4) No criminal liability shall be imposed for failing to comply with
the requirements of paragraph (2) of this subsection except as provided
in paragraph (5) of this subsection.
(5) No person shall knowingly circumvent or knowingly fail to implement
a system of internal accounting controls or knowingly falsify any
book, record, or account described in paragraph (2).
(6) Where an issuer which has a class of securities registered pursuant
to section 78l of this title or an issuer which is required to file
reports pursuant to section 78o(d) of this title holds 50 per centum
or less of the voting power with respect to a domestic or foreign firm,
the provisions of paragraph (2) require only that the issuer proceed
in good faith to use its influence, to the extent reasonable under the
issuer’s circumstances, to cause such domestic or foreign firm to devise
and maintain a system of internal accounting controls consistent with
paragraph (2). Such circumstances include the relative degree of the
issuer’s ownership of the domestic or foreign firm and the laws and
practices governing the business operations of the country in which
such firm is located. An issuer which demonstrates good faith efforts
to use such influence shall be conclusively presumed to have complied
with the requirements of paragraph (2).
(7) For the purpose of paragraph (2) of this subsection, the terms “reasonable
assurances” and “reasonable detail” mean such level of detail
and degree of assurance as would satisfy prudent officials in the conduct
of their own affairs.
* * *
15 U.S.C. § 78ff Penalties [Section 32 of the Securities Exchange
Act of 1934]
(a) Willful violations; false and misleading statements
Any person who willfully violates any provision of this chapter (other
than section 78dd-1 of this title [Section 30A of the Exchange Act]),
or any rule or regulation thereunder the violation of which is made
unlawful or the observance of which is required under the terms of
this chapter, or any person who willfully and knowingly makes, or
causes to be made, any statement in any application, report, or document
required to be filed under this chapter or any rule or regulation
thereunder or any undertaking contained in a registration statement
as provided in subsection (d) of section 78o of this title, or by any
self-regulatory organization in connection with an application for
membership or participation therein or to become associated with a
member thereof, which statement was false or misleading with respect
to any material fact, shall upon conviction be fined not more than
$5,000,000, or imprisoned not more than 20 years, or both, except
that when such person is a person other than a natural person, a fine
not exceeding $25,000,000 may be imposed; but no person shall be
subject to imprisonment under this section for the violation of any
rule or regulation if he proves that he had no knowledge of such rule
or regulation.
(b) Failure to file information, documents, or reports
Any issuer which fails to file information, documents, or reports
required to be filed under subsection (d) of section 78o of this title or
any rule or regulation thereunder shall forfeit to the United States the
sum of $100 for each and every day such failure to file shall continue.
Such forfeiture, which shall be in lieu of any criminal penalty for such
failure to file which might be deemed to arise under subsection (a) of
this section, shall be payable into the Treasury of the United States
and shall be recoverable in a civil suit in the name of the United States.
(c) Violations by issuers, officers, directors, stockholders, employees,
or agents of issuers
(1)(A) Any issuer that violates subsection (a) or (g) of section 78dd-1
[Section 30A of the Exchange Act] of this title shall be fined not more
than $2,000,000.
(B) Any issuer that violates subsection (a) or (g) of section 78dd-1
101
[Section 30A of the Exchange Act]of this title shall be subject to a
civil penalty of not more than $10,000 imposed in an action brought
by the Commission.
(2)(A) Any officer, director, employee, or agent of an issuer, or stockholder
acting on behalf of such issuer, who willfully violates subsection
(a) or (g) of section 78dd-1 [Section 30A of the Exchange Act]
of this title shall be fined not more than $100,000, or imprisoned not
more than 5 years, or both.
APPENDIX
The Foreign
Corrupt
Practices Act
(B) Any officer, director, employee, or agent of an issuer, or stockholder
acting on behalf of such issuer, who violates subsection (a) or
(g) of section 78dd-1 [Section 30A of the Exchange Act] of this title
shall be subject to a civil penalty of not more than $10,000 imposed in
an action brought by the Commission.
(3) Whenever a fine is imposed under paragraph (2) upon any officer,
director, employee, agent, or stockholder of an issuer, such fine may
not be paid, directly or indirectly, by such issuer.
102

APPENDIX
Endnotes
ENDNOTES
1
S. Rep. No. 95-114, at 4 (1977) [hereinafter S. Rep. No. 95-114],
available at http://www.justice.gov/criminal/fraud/fcpa/history/1977/
senaterpt-95-114.pdf.
2
Id.; H.R. Rep. No. 95-640, at 4-5 (1977) [hereinafter H. R. Rep. No.
95-640], available at http://www.justice.gov/criminal/fraud/fcpa/
history/1977/houseprt-95-640.pdf. The House Report made clear
Congress’s concerns:
The payment of bribes to influence the acts or
decisions of foreign officials, foreign political parties
or candidates for foreign political office is unethical.
It is counter to the moral expectations and values of
the American public. But not only is it unethical, it
is bad business as well. It erodes public confidence
in the integrity of the free market system. It shortcircuits
the marketplace by directing business to
those companies too inefficient to compete in terms
of price, quality or service, or too lazy to engage in
honest salesmanship, or too intent upon unloading
marginal products. In short, it rewards corruption
instead of efficiency and puts pressure on ethical
enterprises to lower their standards or risk losing
business.
Id.
3
See, e.g., U.S. Agency for Int’l Dev., USAID Anticorruption
Strategy 5-6 (2005), available at http://transition.usaid.gov/policy/
ads/200/200mbo.pdf. The growing recognition that corruption poses
a severe threat to domestic and international security has galvanized
efforts to combat it in the United States and abroad. See, e.g., Int’l Anti-
Corruption and Good Governance Act of 2000, Pub. L. No. 106-309,
§ 202, 114 Stat. 1090 (codified as amended at 22 U.S.C. §§ 2151-2152
(2000)) (noting that “[w]idespread corruption endangers the stability
and security of societies, undermines democracy, and jeopardizes the
social, political, and economic development of a society. . . . [and that]
[c]orruption facilitates criminal activities, such as money laundering,
hinders economic development, inflates the costs of doing business, and
undermines the legitimacy of the government and public trust”).
4
See Maryse Tremblay & Camille Karbassi, Corruption and Human
Trafficking 4 (Transparency Int’l, Working Paper No. 3, 2011), available
at http://issuu.com/transparencyinternational/docs/ti-working_paper_
human_trafficking_28_jun_2011; U.S. Agency for Int’l Dev.,
Foreign Aid in the National Interest 40 (2002), available at
http://pdf.usaid.gov/pdf_docs/PDABW900.pdf (“No problem does
more to alienate citizens from their political leaders and institutions,
and to undermine political stability and economic development, than
endemic corruption among the government, political party leaders,
judges, and bureaucrats. The more endemic the corruption is, the more
likely it is to be accompanied by other serious deficiencies in the rule of
law: smuggling, drug trafficking, criminal violence, human rights abuses,
and personalization of power.”).
5
President George W. Bush observed in 2006 that “the culture of
corruption has undercut development and good governance and
. . . . impedes our efforts to promote freedom and democracy, end
poverty, and combat international crime and terrorism.” President’s
Statement on Kleptocracy, 2 Pub. Papers 1504 (Aug. 10, 2006),
available at http://georgewbush-whitehouse.archives.gov/news/
releases/2006/08/20060810.html. The administrations of former
President George W. Bush and President Barack Obama both recognized
the threats posed to security and stability by corruption. For instance,
in issuing a proclamation restricting the entry of certain corrupt foreign
public officials, former President George W. Bush recognized “the
serious negative effects that corruption of public institutions has on the
United States’ efforts to promote security and to strengthen democratic
institutions and free market systems. . . .” Proclamation No. 7750, 69
Fed. Reg. 2287 ( Jan. 14, 2004). Similarly, President Barack Obama’s
National Security Strategy paper, released in May 2010, expressed the
administration’s efforts and commitment to promote the recognition that
“pervasive corruption is a violation of basic human rights and a severe
impediment to development and global security.” The White House,
National Security Strategy 38 (2010), available at http://
www.whitehouse.gov/sites/default/files/rss_viewer/national_security_
strategy.pdf.
6
See, e.g., Int’l Chamber of Commerce, et al., Clean Business
Is Good Business: The Business Case Against Corruption
(2008), available at http://www.unglobalcompact.org/docs/news_
events/8.1/clean_business_is_good_business.pdf; World Health Org.,
Fact Sheet No. 335, Medicines: Corruption and Pharmaceuticals (Dec.
2009), available at http://www.who.int/mediacentre/factsheets/fs335/
en/; Daniel Kaufmann, Corruption: The Facts, Foreign Pol’y, Summer
1997, at 119-20; Paolo Mauro, Corruption and Growth, 110 Q. J. Econ.
681, 683, 705 (1995) (finding that “corruption lowers private investment
. . . [and] reduc[es] economic growth . . .”); The World Bank, The
Data Revolution: Measuring Governance and Corruption,
(Apr. 8, 2004), available at http://go.worldbank.org/87JUY8GJH0.
7
See, e.g., The Corruption Eruption, Economist (Apr. 29, 2010),
available at http://www.economist.com/node/16005114 (“The hidden
costs of corruption are almost always much higher than companies
imagine. Corruption inevitably begets ever more corruption: bribe-takers
keep returning to the trough and bribe-givers open themselves up to
blackmail.”); Daniel Kaufmann and Shang-Jin Wei, Does “Grease Money”
Speed Up the Wheels of Commerce? 2 (Nat’l Bureau of Econ. Research,
Working Paper No. 7093, 1999), available at http://www.nber.org/
papers/w7093.pdf (“Contrary to the ‘efficient grease’ theory, we find
104
that firms that pay more bribes are also likely to spend more, not less,
management time with bureaucrats negotiating regulations, and face
higher, not lower, cost of capital.”).
8
For example, in a number of recent enforcement actions, the same
employees who were directing or controlling the bribe payments were
also enriching themselves at the expense of the company. See, e.g.,
Complaint, SEC v. Peterson, No. 12-cv-2033 (E.D.N.Y. 2012), ECF
No. 1, available at http://www.sec.gov/litigation/complaints/2012/
comp-pr2012-78.pdf; Criminal Information, United States v. Peterson,
No. 12-cr-224 (E.D.N.Y. 2012), ECF No. 7 [hereinafter United States v.
Peterson], available at http://www.justice.gov/criminal/fraud/fcpa/cases/
petersong/petersong-information.pdf; Plea Agreement, United States v.
Stanley, No. 08-cr-597 (S.D. Tex. 2008), ECF No. 9 [hereinafter United
States v. Stanley], available at http://www.justice.gov/criminal/fraud/
fcpa/cases/stanleya/09-03-08stanley-plea-agree.pdf; Plea Agreement,
United States v. Sapsizian, No. 06-cr-20797 (S.D. Fla. 2007), ECF No. 42
[hereinafter United States v. Sapsizian], available at http://www.justice.
gov/criminal/fraud/fcpa/cases/sapsizianc/06-06-07sapsizian-plea.pdf.
9
See, e.g., Complaint, SEC v. Tyco Int’l Ltd., 06-cv-2942 (S.D.N.Y. 2006),
ECF No. 1 [hereinafter SEC v. Tyco Int’l], available at http://www.sec.
gov/litigation/complaints/2006/comp19657.pdf; Complaint, SEC
v. Willbros Group, Inc., No. 08-cv-1494 (S.D. Tex. 2008), ECF No. 1
[hereinafter SEC v. Willbros], available at http://www.sec.gov/litigation/
complaints/2008/comp20571.pdf.
10
See Plea Agreement, United States v. Bridgestone Corp., No. 11-cr-
651 (S.D. Tex. 2011), ECF No. 21, available at http://www.justice.gov/
criminal/fraud/fcpa/cases/bridgestone/10-05-11bridgestone-plea.pdf.
11
See S. Rep. No. 95-114, at 6; H.R. Rep. 95-640, at 4; see also A. Carl
Kotchian, The Payoff: Lockheed’s 70-Day Mission to Tokyo, Saturday
Rev., Jul. 9, 1977, at 7.
12
U.S. Sec. and Exchange Comm., Report of the Securities
and Exchange Commission on Questionable and Illegal
Corporate Payments and Practices 2-3 (1976).
13
See H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114, at 3-4.
14
H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114, at 4. The Senate
Report observed, for instance, that “[m]anagements which resort to
corporate bribery and the falsification of records to enhance their
business reveal a lack of confidence about themselves,” while citing the
Secretary of the Treasury’s testimony that “‘[p]aying bribes—apart from
being morally repugnant and illegal in most countries—is simply not
necessary for the successful conduct of business here or overseas.’” Id.
15
See S. Rep. No. 100-85, at 46 (1987) (recounting FCPA’s historical
background and explaining that “a strong antibribery statute could help
U.S. corporations resist corrupt demands . . . .”) [hereinafter S. Rep. No.
100-85].
16
S. Rep. No. 95-114, at 7.
17
Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-
418, § 5003, 102 Stat. 1107, 1415-25 (1988); see also H.R. Rep. No.
100-576, at 916-24 (1988) (discussing FCPA amendments, including
changes to standard of liability for acts of third parties) [hereinafter H.R.
Rep. No. 100-576].
18
See Omnibus Trade and Competitiveness Act of 1988, § 5003(d). The
amended statute included the following directive:
It is the sense of the Congress that the President
should pursue the negotiation of an international
agreement, among the members of the Organization
of Economic Cooperation and Development, to
govern persons from those countries concerning
acts prohibited with respect to issuers and domestic
concerns by the amendments made by this section.
Such international agreement should include a
process by which problems and conflicts associated
with such acts could be resolved.
Id.; see also S. Rep. No. 105-277, at 2 (1998) (describing efforts by
Executive Branch to encourage U.S. trading partners to enact legislation
similar to FCPA following 1988 amendments) [hereinafter S. Rep. No.
105-277].
19
Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions art. 1.1, Dec. 18, 1997, 37 I.L.M. 1
[hereinafter Anti-Bribery Convention]. The Anti-Bribery Convention
requires member countries to make it a criminal offense “for any person
intentionally to offer, promise or give any undue pecuniary or other
advantage, whether directly or through intermediaries, to a foreign
public official, for that official or for a third party, in order that the
official act or refrain from acting in relation to the performance of
official duties, in order to obtain or retain business or other improper
advantage in the conduct of international business.” The Convention
and its commentaries also call on all parties (a) to ensure that aiding and
abetting and authorization of an act of bribery are criminal offenses, (b)
to assert territorial jurisdiction “broadly so that an extensive physical
connection to the bribery act is not required,” and (c) to assert nationality
jurisdiction consistent with the general principles and conditions of each
party’s legal system. Id. at art. 1.2, cmts. 25, 26.
20
See International Anti-Bribery and Fair Competition Act of 1998, Pub.
L. 105-366, 112 Stat. 3302 (1998); see also S. Rep. No. 105-277, at 2-3
(describing amendments to “the FCPA to conform it to the requirements
of and to implement the OECD Convention”).
21
There is no private right of action under the FCPA. See, e.g., Lamb v.
Phillip Morris, Inc., 915 F.2d 1024, 1028-29 (6th Cir. 1990); McLean v.
Int’l Harvester Co., 817 F.2d 1214, 1219 (5th Cir. 1987).
22
U.S. Dept. of Justice, U.S. Attorneys’ Manual § 9-47.110
(2008) [hereinafter USAM], available at http://www.justice.gov/usao/
eousa/foia_reading_room/usam/.
23
Go to http://export.gov/worldwide_us/index.asp for more
information.
24
Additional information about publicly available market research
and due diligence assistance is available online. See In’l Trade Admin.,
Market Research and Due Diligence, available at http://export.gov/
salesandmarketing/eg_main_018204.asp. The International Company
Profile reports include a listing of the potential partner’s key officers
and senior management; banking relationships and other financial
information about the company; and market information, including
sales and profit figures and potential liabilities. They are not, however,
intended to substitute for a company’s own due diligence, and the
Commercial Service does not offer ICP in countries where Dun &
Bradstreet or other private sector vendors are already performing this
service. See In’l Trade Admin., International Company Profile, available at
http://export.gov/salesandmarketing/eg_main_018198.asp.
25
The Commercial Services’ domestic and foreign offices can also be
found at http://export.gov/usoffices/index.asp and http://export.gov/
worldwide_us/index.asp.
26
This form can be located at http://tcc.export.gov/Report_a_Barrier/
index.asp.
27
See In’l Trade Admin., “Doing Business In” Guides, available at
http://export.gov/about/eg_main_016806.asp.
28
The Business Ethics Manual is available at
http://www.ita.doc.gov/goodgovernance/business_ethics/manual.asp.
29
Information about the Advocacy Center can be found at http://export.
gov/advocacy.
30
Reports on U.S. compliance with these treaties can be found at http://
www.justice.gov/criminal/fraud/fcpa/intlagree/.
31
See Statement on Signing the International Anti-Bribery and Fair
Competition Act of 1998, 34 Weekly Comp. Pres. Doc. 2290, 2291
(Nov. 10, 1998) (“U.S. companies have had to compete on an uneven
playing field . . . . The OECD Convention . . . is designed to change all
that. Under the Convention, our major competitors will be obligated to
criminalize the bribery of foreign public officials in international business
transactions.”).
32
Colombia is also a member of the Working Group and is expected to
accede to the Anti-Bribery Convention.
33
OECD, Country Monitoring of the OECD Anti-Bribery Convention,
available at http://www.oecd.org/document/12/0,3746,
en_2649_34859_35692940_1_1_1_1,00.html.
34
OECD, Phase 3 Country Monitoring of the OECD Anti-Bribery
Convention, available at http://www.oecd.org/document/31/0,3746,
en_2649_34859_44684959_1_1_1_1,00.html.
35
OECD, Country Reports on the Implementation of the OECD Anti-
Bribery Convention, available at http://www.oecd.org/document/24/0,3
746,en_2649_34859_1933144_1_1_1_1,00.html.
36
The OECD Phase 1, 2, and 3 reports on the United States, as well as
the U.S. responses to questionnaires, are available at http://www.justice.
gov/criminal/fraud/fcpa/intlagree.
37
See OECD Working Group on Bribery, United States: Phase 3, Report
on the Application of the Convention on Combating Bribery of Foreign
105
Public Officials in International Business Transactions and the 2009
Revised Recommendation on Combating Bribery in International Business
Transactions, Oct. 2010, at 61-62 (recommending that the United States
“[c]onsolidate and summarise publicly available information on the
application of the FCPA in relevant sources”), available at http://www.
oecd.org/dataoecd/10/49/46213841.pdf.
38
United Nations Convention Against Corruption, Oct. 31, 2003, S.
Treaty Doc. No. 109-6, 2349 U.N.T.S. 41, available at http://www.
unodc.org/documents/treaties/UNCAC/Publications/Convention/08-
50026_E.pdf [hereinafter UNCAC].
39
For more information about the UNCAC review mechanism, see
Mechanism for the Review of Implementation of the United Nations
Convention Against Corruption, United Nations Office on Drugs
and Crime, available at http://www.unodc.org/documents/treaties/
UNCAC/Publications/ReviewMechanism-BasicDocuments/
Mechanism_for_the_Review_of_Implementation_-_Basic_
Documents_-_E.pdf.
40
For information about the status of UNCAC, see United Nations
Office on Drugs and Crime, UNCAC Signature and Ratification Status as
of 12 July 2012, available at http://www.unodc.org/unodc/en/treaties/
CAC/signatories.html.
41
Organization of American States, Inter-American Convention Against
Corruption, Mar. 29, 1996, 35 I.L.M. 724, available at http://www.oas.
org/juridico/english/treaties/b-58.html. For additional information
about the status of the IACAC, see Organization of American States,
Signatories and Ratifications, available at http://www.oas.org/juridico/
english/Sigs/b-58.html.
42
Council of Europe, Criminal Law Convention on Corruption, Jan. 27,
1999, 38 I.L.M. 505, available at http://conventions.coe.int/Treaty/en/
Treaties/html/173.htm.
43
For additional information about GRECO, see Council of Europe,
Group of States Against Corruption, available at http://www.coe.int/t/
dghl/monitoring/greco/default_EN.asp. The United States has not yet
ratified the GRECO convention.
44
The text of the FCPA statute is set forth in the appendix. See also Jury
Instructions at 21-27, United States v. Esquenazi, No. 09-cr-21010 (S.D.
Fla. Aug. 5, 2011), ECF No. 520 [hereinafter United States v. Esquenazi]
(FCPA jury instructions); Jury Instructions at 14-25, United States v.
Kay, No. 01-cr-914 (S.D. Tex. Oct. 6, 2004), ECF No. 142 (same), aff ’d,
513 F.3d 432, 446-52 (5th Cir. 2007), reh’g denied, 513 F.3d 461 (5th
Cir. 2008) [hereinafter United States v. Kay]; Jury Instructions at 76-87,
United States v. Jefferson, No. 07-cr-209 (E.D. Va. July 30, 2009), ECF
No. 684 [hereinafter United States v. Jefferson] (same); Jury Instructions
at 8-10, United States v. Green, No. 08-cr-59 (C.D. Cal. Sept. 11,
2009), ECF No. 288 [hereinafter United States v. Green] (same); Jury
Instructions at 23-29, United States v. Bourke, No. 05-cr-518 (S.D.N.Y.
July 2009) [hereinafter United States v. Bourke] (same, not docketed);
Jury Instructions at 2-8, United States v. Mead, No. 98-cr-240 (D.N.J.
Oct. 1998) [hereinafter United States v. Mead] (same).
45
The provisions of the FCPA applying to issuers are part of the Securities
Exchange Act of 1934 [hereinafter Exchange Act]. The anti-bribery
provisions can be found at Section 30A of the Exchange Act, 15 U.S.C.
§ 78dd-1.
46
15 U.S.C. § 78l.
47
15 U.S.C. § 78o(d).
48
SEC enforcement actions have involved a number of foreign
issuers. See, e.g., Complaint, SEC v. Magyar Telekom Plc., et al., No.
11-cv-9646 (S.D.N.Y. Dec. 29, 2011), ECF No. 1 (German and
Hungarian companies), available at http://www.sec.gov/litigation/
complaints/2011/comp22213-co.pdf; Complaint, SEC v. Alcatel-
Lucent, S.A., No. 10-cv-24620 (S.D. Fla. Dec. 27, 2010), ECF No.
1 [hereinafter SEC v. Alcatel-Lucent] (French company), available at
http://www.sec.gov/litigation/complaints/2010/comp21795.pdf;
Complaint, SEC v. ABB, Ltd., No. 10-cv-1648 (D.D.C. Sept. 29, 2010),
ECF No. 1 [hereinafter SEC v. ABB] (Swiss company), available at
http://www.sec.gov/litigation/complaints/2010/comp-pr2010-175.
pdf; Complaint, SEC v. Daimler AG, No. 10-cv-473 (D.D.C. Apr. 1,
2010), ECF No. 1 [hereinafter SEC v. Daimler AG] (German company),
available at http://sec.gov/litigation/complaints/2010/comppr2010-51.pdf;
Complaint, SEC v. Siemens Aktiengesellschaft, No. 08-
cv-2167 (D.D.C. Dec. 12, 2008), ECF No. 1 [hereinafter SEC v. Siemens
AG] (Germany company), available at http://www.sec.gov/litigation/
complaints/2008/comp20829.pdf. Certain DOJ enforcement actions
have likewise involved foreign issuers. See, e.g., Criminal Information,
United States v. Magyar Telekom, Plc., No. 11-cr-597 (E.D. Va. Dec. 29,
2011), ECF No. 1, available at http://www.justice.gov/criminal/fraud/
fcpa/cases/magyar-telekom/2011-12-29-information-magyar-telekom.
pdf; Non-Pros. Agreement, In re Deutsche Telekom AG (Dec. 29, 2011),
available at http://www.justice.gov/criminal/fraud/fcpa/cases/deutschetelekom/2011-12-29-deustche-telekom-npa.pdf;
Criminal Information,
United States v. Alcatel-Lucent, S.A., No. 10-cr-20907 (S.D. Fla. Dec.
27, 2010), ECF No. 1 [hereinafter United States v. Alcatel-Lucent, S.A.],
available at http://www.justice.gov/criminal/fraud/fcpa/cases/alcateletal/12-27-10alcatel-et-al-info.pdf;
Criminal Information, United
States v. Daimler AG, No. 10-cr-63 (D.D.C. Mar. 22, 2010), ECF No.
1 [hereinafter United States v. Daimler AG], available at http://www.
justice.gov/criminal/fraud/fcpa/cases/daimler/03-22-10daimlerag-info.
pdf; Criminal Information, United States v. Siemens Aktiengesellschaft,
No. 08-cr-367 (D.D.C. Dec. 12, 2008), ECF No. 1 [hereinafter United
States v. Siemens AG], available at http://www.justice.gov/criminal/
fraud/fcpa/cases/siemens/12-12-08siemensakt-info.pdf.
49
See http://www.sec.gov/divisions/corpfin/internatl/companies.shtml.
50
See, e.g., Complaint, SEC v. Turner, et al., No. 10-cv-1309 (D.D.C.
Aug. 4, 2010), ECF No. 1 [hereinafter, SEC v. Turner] (charging a
Lebansese/Canadian agent of a UK company listed on U.S. exchange
with violating the FCPA for bribes of Iraqi officials), available at http://
www.sec.gov/litigation/complaints/2010/comp21615.pdf; Indictment,
United States v. Naaman, No. 08-cr-246 (D.D.C. Aug. 7, 2008), ECF
No. 3 [hereinafter United States v. Naaman] (same), available at http://
www.justice.gov/criminal/fraud/fcpa/cases/naamano/08-07-08naamanindict.pdf;
Complaint, SEC v. Elkin, et al., No. 10-cv-661 (D.D.C.
Apr. 28, 2010), ECF No. 1 [hereinafter SEC v. Elkin] (charging an
employee of U.S. publicly traded company with violating FCPA for
bribery of officials in Kyrgyzstan), available at http://www.sec.gov/
litigation/complaints/2010/comp21509.pdf; Criminal Information,
United States v. Elkin, No. 10-cr-15 (W.D. Va. Aug. 3, 2010), ECF No.
8 [hereinafter United States v. Elkin] (same), available at http://www.
justice.gov/criminal/fraud/fcpa/cases/elkin/08-03-10elkin-information.
pdf; Indictment, United States v. Tesler, et al., No. 09-cr-98 (S.D. Tex.
Feb. 17, 2009), ECF No. 1 [hereinafter United States v. Tesler] (charging
a British agent of U.S. publicly traded company with violating the
FCPA for bribery of Nigerian officials), available at http://www.justice.
gov/criminal/fraud/fcpa/cases/tesler/tesler-indict.pdf; Superseding
Indictment, United States v. Sapsizian, et al., supra note 8, ECF 32
(charging a French employee of French company traded on a U.S.
exchange with violating the FCPA).
51
15 U.S.C. § 78dd-2.
52
15 U.S.C. § 78dd-2(h)(1).
53
15 U.S.C. § 78dd-2(a). See, e.g., Superseding Indictment, United States
v. Nexus Technologies, et al., No. 08-cr-522 (E.D. Pa. Oct. 28, 2009),
ECF No. 106 [hereinafter United States v. Nexus Technologies] (private
U.S. company and corporate executives charged with violating FCPA for
bribes paid in Vietnam), available at http://www.justice.gov/criminal/
fraud/fcpa/cases/nguyenn/09-04-08nguyen-indict.pdf; Indictment,
United States v. Esquenazi, supra note 44, (private U.S. company and
corporate executives charged with FCPA violations for bribes paid in
Haiti), available at http://www.justice.gov/criminal/fraud/fcpa/cases/
esquenazij/12-08-09esquenazi-indict.pdf.
54
15 U.S.C. § 78dd-3(a). As discussed above, foreign companies that
have securities registered in the United States or that are required to file
periodic reports with the SEC, including certain foreign companies with
American Depository Receipts, are covered by the FCPA’s anti-bribery
provisions governing “issuers” under 15 U.S.C. § 78dd-1.
APPENDIX
Endnotes
106
55
See International Anti-Bribery and Fair Competition Act of 1998, Pub.
L. 105-366, 112 Stat. 3302 (1998); 15 U.S.C. § 78dd-3(a); see also U.S.
Dept. of Justice, Criminal Resource Manual § 9-1018 (Nov.
2000) (the Department “interprets [Section 78dd-3(a)] as conferring
jurisdiction whenever a foreign company or national causes an act to be
done within the territory of the United States by any person acting as
that company’s or national’s agent.”). This interpretation is consistent
with U.S. treaty obligations. See S. Rep. No. 105-2177 (1998) (expressing
Congress’ intention that the 1998 amendments to the FCPA “conform
it to the requirements of and to implement the OECD Convention.”);
Anti-Bribery Convention at art. 4.1, supra note 19 (“Each Party shall
take such measures as may be necessary to establish its jurisdiction over
the bribery of a foreign public official when the offence is committed in
whole or in part in its territory.”).
56
15 U.S.C. § 78dd-3(a); see, e.g., Criminal Information, United States v.
Alcatel-Lucent France, S.A., et al., No. 10-cr-20906 (S.D. Fla. Dec. 27,
2010), ECF No. 1 [hereinafter United States v. Alcatel-Lucent France]
(subsidiary of French publicly traded company convicted of conspiracy
to violate FCPA), available at http://www.justice.gov/criminal/fraud/
fcpa/cases/alcatel-lucent-sa-etal/12-27-10alcatel-et-al-info.pdf; Criminal
Information, United States v. DaimlerChrysler Automotive Russia
SAO, No. 10-cr-64 (D.D.C. Mar. 22, 2010), ECF No. 1 (subsidiary of
German publicly traded company convicted of violating FCPA), available
at http://www.justice.gov/criminal/fraud/fcpa/cases/daimler/03-22-
10daimlerrussia-info.pdf; Criminal Information, United States v. Siemens
S.A. (Argentina), No. 08-cr-368 (D.D.C. Dec. 12, 2008), ECF No. 1
(subsidiary of German publicly traded company convicted of violating
FCPA), available at http://www.justice.gov/criminal/fraud/fcpa/cases/
siemens/12-12-08siemensargen-info.pdf.
57
See 15 U.S.C. §§ 78dd-2(h)(5) (defining “interstate commerce”), 78dd-
3(f )(5) (same); see also 15 U.S.C. §78c(a)(17).
58
15 U.S.C. §§ 78dd-2(h)(5), 78dd-3(f )(5).
59
See 15 U.S.C. § 78dd-3.
60
Criminal Information, United States v. JGC Corp., No. 11-cr-260
(S.D. Tex. Apr. 6, 2011), ECF No. 1 [hereinafter United States v. JGC
Corp.], available at http://www.justice.gov/criminal/fraud/fcpa/cases/
jgc-corp/04-6-11jgc-corp-info.pdf; Criminal Information, United States
v. Snamprogetti Netherlands B.V., No. 10-cr-460 (S.D. Tex. Jul. 7, 2010),
ECF No. 1 [hereinafter United States v. Snamprogetti], available at
http://www.justice.gov/criminal/fraud/fcpa/cases/snamprogetti/07-07-
10snamprogetti-info.pdf.
61
See 15 U.S.C. §§ 78dd-1(g) (“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”), 78dd-2(i)
(1) (“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”).
62
S. Rep. No. 105-277 at 2 (“[T]he OECD Convention calls on parties
to assert nationality jurisdiction when consistent with national legal
and constitutional principles. Accordingly, the Act amends the FCPA
to provide for jurisdiction over the acts of U.S. businesses and nationals
in furtherance of unlawful payments that take place wholly outside
the United States. This exercise of jurisdiction over U.S. businesses and
nationals for unlawful conduct abroad is consistent with U.S. legal
and constitutional principles and is essential to protect U.S. interests
abroad.”).
63
Id. at 2-3.
64
15 U.S.C. §§ 78dd-1(a), 78dd-2(a), 78dd-3(a).
65
See H.R. Rep. No. 95-831, at 12 (referring to “business purpose” test).
66
See, e.g., Complaint, SEC v. Siemens AG, supra note 48; Criminal
Information, United States v. Siemens AG, supra note 48.
67
In amending the FCPA in 1988, Congress made clear that the business
purpose element, and specifically the “retaining business” prong, was
meant to be interpreted broadly:
The Conferees wish to make clear that the reference
to corrupt payments for “retaining business” in
present law is not limited to the renewal of contracts
or other business, but also includes a prohibition
against corrupt payments related to the execution
or performance of contracts or the carrying out of
existing business, such as a payment to a foreign
official for the purpose of obtaining more favorable
tax treatment. The term should not, however, be
construed so broadly as to include lobbying or other
normal representations to government officials.
H.R. Rep. No. 100-576, at 1951-52 (internal citations omitted).
68
See, e.g., Complaint, SEC v. Panalpina, Inc., No. 10-cv-4334 (S.D. Tex.
Nov. 4, 2010), ECF No. 1 [hereinafter SEC v. Panalpina, Inc.], available
at http://www.sec.gov/litigation/complaints/2010/comp21727.pdf;
Criminal Information, United States v. Panalpina, Inc., No. 10-cr-
765 (S.D. Tex. Nov. 4, 2010), ECF No. 1 [hereinafter United States v.
Panalpina, Inc.], available at http://www.justice.gov/criminal/fraud/
fcpa/cases/panalpina-inc/11-04-10panalpina-info.pdf; Criminal
Information, United States v. Panalpina World Transport (Holding)
Ltd., No. 10-cr-769 (S.D. Tex. Nov. 4, 2010), ECF No. 1, available
at http://www.justice.gov/criminal/fraud/fcpa/cases/panalpinaworld/11-04-10panalpina-world-info.pdf;
see also Press Release, U.S.
Sec. and Exchange Comm., SEC Charges Seven Oil Services and
Freight Forwarding Companies for Widespread Bribery of Customs
Officials (Nov. 4, 2010) (“The SEC alleges that the companies bribed
customs officials in more than 10 countries in exchange for such perks
as avoiding applicable customs duties on imported goods, expediting
the importation of goods and equipment, extending drilling contracts,
and lowering tax assessments.”), available at http://www.sec.gov/
news/press/2010/2010-214.htm; Press Release, U.S. Dept. of Justice,
Oil Services Companies and a Freight Forwarding Company Agree
to Resolve Foreign Bribery Investigations and to Pay More Than $156
Million in Criminal Penalties (Nov. 4, 2010) (logistics provider and its
subsidiary engaged in scheme to pay thousands of bribes totaling at least
$27 million to numerous foreign officials on behalf of customers in oil
and gas industry “to circumvent local rules and regulations relating to
the import of goods and materials into numerous foreign jurisdictions”),
available at http://www.justice.gov/opa/pr/2010/November/10-
crm-1251.html.
69
United States v. Kay, 359 F.3d 738, 755-56 (5th Cir. 2004).
70
Id. at 749. Indeed, the Kay court found that Congress’ explicit
exclusion of facilitation payments from the scope of the FCPA was
evidence that “Congress intended for the FCPA to prohibit all other
illicit payments that are intended to influence non-trivial official foreign
action in an effort to aid in obtaining or retaining business for some
person.” Id. at 749-50 (emphasis added).
71
Id. at 750.
72
Id. at 749-55.
73
Id. at 756 (“It still must be shown that the bribery was intended to
produce an effect—here, through tax savings—that would ‘assist in
obtaining or retaining business.’”).
74
The FCPA does not explicitly define “corruptly,” but in drafting the
statute Congress adopted the meaning ascribed to the same term in the
domestic bribery statute, 18 U.S.C. § 201(b). See H.R. Rep. No. 95-640,
at 7.
75
The House Report states in full:
The word “corruptly” is used in order to make
clear that the offer, payment, promise, or gift, must
be intended to induce the recipient to misuse
his official position; for example, wrongfully to
direct business to the payor or his client, to obtain
preferential legislation or regulations, or to induce a
foreign official to fail to perform an official function.
The word “corruptly” connotes an evil motive or
purpose such as that required under 18 U.S.C.
201(b) which prohibits domestic bribery. As in
18 U.S.C. 201(b), the word “corruptly” indicates
an intent or desire wrongfully to influence the
recipient. It does not require that the act [be] fully
consummated or succeed in producing the desired
outcome.
Id. The Senate Report provides a nearly identical explanation of the
meaning of the term:
The word “corruptly” is used in order to make
clear that the offer, payment, promise, or gift, must
be intended to induce the recipient to misuse
his official position in order to wrongfully direct
business to the payor or his client, or to obtain
107
preferential legislation or a favorable regulation.
The word “corruptly” connotes an evil motive or
purpose, an intent to wrongfully influence the
recipient.
S. Rep. No. 95-114, at 10.
76
See 15 U.S.C. §§ 78dd-1(a), 78dd-2(a), 78dd-3(a).
77
See, e.g., Complaint, SEC v. Monsanto Co., No. 05-cv-14 (D.D.C.
Jan. 6, 2005) (among other things, the company paid a $50,000 bribe
to influence an Indonesian official to repeal an unfavorable law, which
was not repealed despite the bribe), available at http://www.sec.gov/
litigation/complaints/comp19023.pdf; Criminal Information, United
States v. Monsanto Co., No. 05-cr-8 (D.D.C. Jan. 6, 2005), available at
http://www.justice.gov/criminal/fraud/fcpa/cases/monsanto-co/01-06-
05monsanto-info.pdf.
78
Jury instructions in FCPA cases have defined “corruptly” consistent
with the definition found in the legislative history. See, e.g., Jury
Instructions at 22-23, United States v. Esquenazi, supra note 44; Jury
Instructions at 10, United States v. Green, supra note 44; Jury Instructions
at 35, United States v. Jefferson, supra note 44; Jury Instructions at 25,
United States v. Bourke, supra note 44; Jury Instructions at 17, United
States v. Kay, supra note 44; Jury Instructions at 5, United States v. Mead,
supra note 44.
79
See Complaint, SEC v. Innospec, Inc., No. 10-cv-448 (D.D.C. Mar.
18, 2010), ECF No. 1 [hereinafter SEC v. Innospec], available at http://
www.sec.gov/litigation/complaints/2010/comp21454.pdf; Criminal
Information at 8, United States v. Innospec Inc., No. 10-cr-61 (D.D.C.
Mar. 17, 2010), ECF No. 1 [hereinafter United States v. Innospec],
available at http://www.justice.gov/criminal/fraud/fcpa/cases/innospecinc/03-17-10innospec-info.pdf.
80
See Complaint, SEC v. Innospec, supra note 79; Criminal Information,
United States v. Innospec, supra note 79.
81
See 15 U.S.C. §§ 78dd-1(c)(2)(A), 78dd-2(g)(2)(A), and 78dd-3(3)(2)
(A).
82
Compare 15 U.S.C. § 78ff(c)(1)(A) (corporate criminal liability under
issuer provision) with § 78ff(c)(2)(A) (individual criminal liability under
issuer provision); compare 15 U.S.C. § 78dd-2(g)(1)(A) (corporate
criminal liability under domestic concern provision) with § 78dd-2(g)
(2)(A) (individual criminal liability under issuer provision); compare
15 U.S.C. § 78dd-3(e)(1)(A) (corporate criminal liability for territorial
provision) with § 78dd-3(e)(2)(A) (individual criminal liability for
territorial provision). However, companies still must act corruptly.
See Section 30A(a), 15 U.S.C. § 78dd-1(a); 15 U.S.C. §§ 78dd-2(a),
78dd-3(a).
83
United States v. Kay, 513 F.3d 432, 448 (5th Cir. 2007); see also
Jury Instructions at 38, United States v. Esquenazi, supra note 44; Jury
Instructions at 10, United States v. Green, supra note 44; Jury Instructions
at 35, United States v. Jefferson, supra note 44; Jury Instructions at 25,
United States v. Bourke, supra note 44; Jury Instructions at 5, United States
v. Mead, supra note 44.
84
Bryan v. United States, 524 U.S. 184, 191-92 (1998) (construing
“willfully” in the context of 18 U.S.C. § 924(a)(1)(A)) (quoting Ratzlaf v.
United States, 510 U.S. 135, 137 (1994)); see also Kay, 513 F.3d at 446-
51 (discussing Bryan and term “willfully” under the FCPA).
85
Kay, 513 F.3d at 447-48; Stichting Ter Behartiging Van de Belangen
Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v.
Schreiber, 327 F.3d 173, 181 (2d Cir. 2003).
86
The phrase “anything of value” is not defined in the FCPA, but the
identical phrase under the domestic bribery statute has been broadly
construed to include both tangible and intangible benefits. See, e.g.,
United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008) (rejecting
defendant’s objection to instruction defining sex as a “thing of value,”
which “unambiguously covers intangible considerations”); United
States v. Gorman, 807 F.2d 1299, 1304-05 (6th Cir. 1986) (holding that
loans and promises of future employment are “things of value”); United
States v. Williams, 705 F.2d 603, 622-23 (2d Cir. 1983) (approving jury
instruction that stock could be a “thing of value” if defendant believed it
had value, even though the shares had no commercial value, and noting
that “[t]he phrase ‘anything of value’ in bribery and related statutes has
consistently been given a broad meaning”).
87
Section 30A(a), 15 U.S.C. § 78dd-1(a); 15 U.S.C. §§ 78dd-2(a), 78dd-
3(a) (emphasis added).
88
Like the FCPA, the domestic bribery statute, 18 U.S.C. § 201, prohibits
giving, offering, or promising “anything of value.” Numerous domestic
bribery cases under Section 201 have involved “small” dollar bribes.
See, e.g., United States v. Franco, 632 F.3d 880, 882-84 (5th Cir. 2011)
(affirming bribery convictions of inmate for paying correctional officer
$325 to obtain cell phone, food, and marijuana, and noting that 18
U.S.C. § 201 does not contain minimum monetary threshold); United
States v. Williams, 216 F.3d 1099, 1103 (D.C. Cir. 2000) (affirming
bribery conviction for $70 bribe to vehicle inspector); United States v.
Traitz, 871 F.2d 368, 396 (3rd Cir. 1989) (affirming bribery conviction
for $100 bribe paid to official of Occupational Health and Safety
Administration); United States v. Hsieh Hui Mei Chen, 754 F.2d 817,
822 (9th Cir. 1985) (affirming bribery convictions including $100 bribe
to immigration official); United States v. Bishton, 463 F.2d 887, 889
(D.C. Cir. 1972) (affirming bribery conviction for $100 bribe to division
chief of District of Columbia Sewer Operations Division).
89
Complaint, SEC v. Daimler AG, supra note 48; Criminal Information,
United States v. Daimler AG, supra note 48.
90
Complaint, SEC v. Halliburton Company and KBR, Inc., No. 09-cv-
399 (S.D. Tex. Feb. 11, 2009), ECF No 1 [hereinafter SEC v. Halliburton
and KBR], available at http://www.sec.gov/litigation/complaints/2009/
comp20897.pdf; Criminal Information, United States v. Kellogg
Brown & Root LLC, No. 09-cr-71, ECF No. 1 (S.D. Tex. Feb. 6, 2009)
[hereinafter United States v. KBR], available at http://www.justice.gov/
criminal/fraud/fcpa/cases/kelloggb/02-06-09kbr-info.pdf.
91
Complaint, SEC v. Halliburton and KBR, supra note 90; Criminal
Information, United States v. KBR, supra note 90.
92
See, e.g., Complaint, SEC v. RAE Sys. Inc., No. 10-cv-2093 (D.D.C.
Dec. 10, 2010), ECF No. 1 [hereinafter SEC v. RAE Sys., Inc.] (fur
coat, among other extravagant gifts), available at http://www.sec.gov/
litigation/complaints/2010/comp21770.pdf; Non-Pros. Agreement,
In re RAE Sys. Inc. (Dec. 10, 2010) [hereinafter In re RAE Sys. Inc.]
(same), available at http://www.justice.gov/criminal/fraud/fcpa/cases/
rae-systems/12-10-10rae-systems.pdf; Complaint, SEC v. Daimler AG,
supra note 48 (armored Mercedes Benz worth €300,000); Criminal
Information, United States v. Daimler AG, supra note 48 (same).
93
See Complaint, SEC v. ABB Ltd, No. 04-cv-1141 (D.D.C. July
6, 2004), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/comp18775.pdf; Criminal Information, United States v.
ABB Vetco Gray Inc., et al., No. 04-cr-279 (S.D. Tex. June 22, 2004),
ECF No. 1 [hereinafter United States v. ABB Vetco Gray], available
at http://www.justice.gov/criminal/fraud/fcpa/cases/abb/06-22-
04abbvetco-info.pdf.
94
Complaint, SEC v. UTStarcom, Inc., No. 09-cv-6094 (N.D. Cal. Dec.
31, 2009), ECF No. 1 [hereinafter SEC v. UTStarcom], available at
http://www.sec.gov/litigation/complaints/2009/comp21357.pdf; Non-
Pros. Agreement, In re UTStarcom Inc. (Dec. 31, 2009) [hereinafter In re
UTStarcom], available at http://www.justice.gov/criminal/fraud/fcpa/
cases/utstarcom-inc/12-31-09utstarcom-agree.pdf.
95
Complaint, SEC v. UTStarcom, supra note 94; Non-Pros. Agreement,
In re UTStarcom, supra note 94.
96
Complaint, SEC v. UTStarcom, supra note 94; Non-Pros. Agreement,
In re UTStarcom, supra note 94.
97
Complaint, SEC v. Lucent Technologies Inc., No. 07-cv-2301 (D.D.C.
Dec. 21, 2007), ECF No.1 [hereinafter SEC v. Lucent], available at
http://www.sec.gov/litigation/complaints/2007/comp20414.pdf; Non-
Pros. Agreement, In re Lucent Technologies (Nov. 14, 2007) [hereinafter
In re Lucent], available at http://www.justice.gov/criminal/fraud/fcpa/
cases/lucent-tech/11-14-07lucent-agree.pdf.
98
Complaint, SEC v. Lucent, supra note 97; Non-Pros. Agreement, In re
Lucent, supra note 97.
99
The company consented to the entry of a final judgment permanently
APPENDIX
Endnotes
108
enjoining it from future violations of the books and records and internal
controls provisions and paid a civil penalty of $1,500,000. Complaint,
SEC v. Lucent, supra note 97. Additionally, the company entered into a
non-prosecution agreement with DOJ and paid a $1,000,000 monetary
penalty. Non-Pros. Agreement, In re Lucent, supra note 97.
100
United States v. Liebo, 923 F.2d 1308, 1311 (8th Cir. 1991).
101
Judgment, United States v. Liebo, No. 89-cr-76 (D. Minn. Jan. 31,
1992), available at http://www.justice.gov/criminal/fraud/fcpa/cases/
liebor/1992-01-31-liebor-judgment.pdf.
102
Complaint, SEC v. Schering-Plough Corp., No. 04-cv-945 (D.D.C.
June 9, 2004), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/comp18740.pdf; Admin. Proceeding Order, In the Matter
of Schering-Plough Corp., Exchange Act Release No. 49838 ( June 9,
2004) (finding that company violated FCPA accounting provisions and
imposing $500,000 civil monetary penalty), available at http://www.sec.
gov/litigation/admin/34-49838.htm.
103
FCPA opinion procedure releases can be found at http://www.
justice.gov/criminal/fraud/fcpa/. In the case of the company seeking to
contribute the $1.42 million grant to a local MFI, DOJ noted that it had
undertaken each of these due diligence steps and controls, in addition to
others, that would minimize the likelihood that anything of value would
be given to any officials of the Eurasian country. U.S. Dept. of Justice,
FCPA Op. Release 10-02 ( July 16, 2010), available at http://www.
justice.gov/criminal/fraud/fcpa/opinion/2010/1002.pdf.
104
U.S. Dept. of Justice, FCPA Op. Release 95-01 ( Jan. 11,
1995), available at http://www.justice.gov/criminal/fraud/fcpa/
opinion/1995/9501.pdf.
105
Id.
106
Id.
107
U.S. Dept. of Justice, FCPA Op. Release 97-02 (Nov. 5,
1997), available at http://www.justice.gov/criminal/fraud/fcpa/
opinion/1997/9702.pdf; U.S. Dept. of Justice, FCPA Op. Release
06-01 (Oct. 16, 2006), available at http://www.justice.gov/criminal/
fraud/fcpa/opinion/2006/0601.pdf.
108
U.S. Dept. of Justice, FCPA Op. Release 06-01 (Oct. 16, 2006).
109
Id.
110
Id.
111
See Section 30A(a)(1)-(3) of the Exchange Act, 15 U.S.C. § 78dd-1(a)
(1)-(3); 15 U.S.C. §§ 78dd-2(a)(1)-(3), 78dd-3(a)(1)-(3).
112
Section 30A(f )(1)(A) of the Exchange Act, 15 U.S.C. § 78dd-1(f )(1)
(A); 15 U.S.C. §§ 78dd-2(h)(2)(A), 78dd-3(f )(2)(A).
113
Under the FCPA, any person “acting in an official capacity for
or on behalf of ” a foreign government, a department, agency, or
instrumentality thereof, or a public international organization, is a
foreign official. Section 30A(f )(1)(A), 15 U.S.C. § 78dd-1(f )(1)(A); 15
U.S.C. §§ 78dd-2(h)(2)(A), 78dd-2(f )(2)(A). See also U.S. Dept. of
Justice, FCPA Op. Release No. 10-03, at 2 (Sept. 1, 2010), available
at http://www.justice.gov/criminal/fraud/fcpa/opinion/2010/1003.pdf
(listing safeguards to ensure that consultant was not acting on behalf of
foreign government).
114
But see Sections 30A(b) and f(3)(A) of the Exchange Act, 15 U.S.C. §
78dd-1(b) & (f )(3); 15 U.S.C. §§ 78dd-2(b) & (h)(4), 78dd-3(b) & (f )
(4) (facilitating payments exception).
115
Even though payments to a foreign government may not violate the
anti-bribery provisions of the FCPA, such payments may violate other
U.S. laws, including wire fraud, money laundering, and the FCPA’s
accounting provisions. This was the case in a series of matters brought by
DOJ and SEC involving kickbacks to the Iraqi government through the
United Nations Oil-for-Food Programme. See, e.g., Complaint, SEC v.
Innospec, supra note 79; Criminal Information, United States v. Innospec,
supra note 79; Complaint, SEC v. Novo Nordisk A/S, No. 09-cv-862
(D.D.C. May 11, 2009), ECF No. 1, available at http://www.sec.gov/
litigation/complaints/2009/comp21033.pdf; Criminal Information,
United States v. Novo Nordisk A/S, No. 09-cr-126 (D.D.C. May 11,
2009), ECF No. 1, available at http://www.justice.gov/criminal/
fraud/fcpa/cases/nordiskn/05-11-09novo-info.pdf; Complaint,
SEC v. Ingersoll-Rand Company Ltd., No. 07-cv-1955 (D.D.C. Oct.
31, 2007), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/2007/comp20353.pdf; Criminal Information, United States
v. Ingersoll-Rand Italiana SpA, No. 07-cr-294 (D.D.C. Oct. 31, 2007),
ECF No. 1, available at http://www.justice.gov/criminal/fraud/fcpa/
cases/ingerand-italiana/10-31-07ingersollrand-info.pdf; Complaint,
SEC v. York Int’l Corp., No. 07-cv-1750 (D.D.C. Oct. 1, 2007), ECF
No. 1 [hereinafter SEC v. York Int’l Corp.], available at http://www.sec.
gov/litigation/complaints/2007/comp20319.pdf; Criminal Information,
United States v. York Int’l Corp., No. 07-cr-253 (D.D.C. Oct. 1, 2007),
ECF No. 1 [hereinafter United States v. York Int’l Corp.], available at
http://www.justice.gov/criminal/fraud/fcpa/cases/york/10-01-07yorkinfo.pdf;
Complaint, SEC v. Textron Inc., No. 07-cv-1505 (D.D.C. Aug.
23, 2007), ECF No. 1 [hereinafter SEC v. Textron], available at http://
www.sec.gov/litigation/complaints/2007/comp20251.pdf; Non-Pros.
Agreement, In re Textron Inc. (Aug. 23, 2007), available at http://www.
justice.gov/criminal/fraud/fcpa/cases/textron-inc/08-21-07textronagree.pdf.
DOJ has issued opinion procedure releases concerning
payments (that were, in essence, donations) to government agencies or
departments. See U.S. Dept. of Justice, FCPA Op. Release 09-01
(Aug. 3, 2009) (involving donation of 100 medical devices to foreign
government), available at http://www.justice.gov/criminal/fraud/
fcpa/opinion/2009/0901.pdf; U.S. Dept. of Justice, FCPA Op.
Release 06-01 (Oct. 16, 2006) (involving contribution of $25,000 to
regional customs department to pay incentive rewards to improve local
enforcement of anti-counterfeiting laws), available at http://www.justice.
gov/criminal/fraud/fcpa/opinion/2006/0601.pdf.
116
The United States has some state-owned entities, like the Tennessee
Valley Authority, that are instrumentalities of the government. McCarthy
v. Middle Tenn. Elec. Membership Corp., 466 F.3d 399, 411 n.18
(6th Cir. 2006) (“[T]here is no question that TVA is an agency and
instrumentality of the United States.”) (internal quotes omitted).
117
During the period surrounding the FCPA’s adoption, state-owned
entities held virtual monopolies and operated under state-controlled
price-setting in many national industries around the world. See generally
World Bank, Bureaucrats in Business: The Economics
and Politics of Government Ownership, World Bank
Policy Research Report at 78 (1995); Sunita Kikeri and
Aishetu Kolo, State Enterprises, The World Bank Group
(Feb. 2006), available at http://rru.worldbank.org/documents/
publicpolicyjournal/304Kikeri_Kolo.pdf.
118
Id. at 1 (“[A]fter more than two decades of privatization, government
ownership and control remains widespread in many regions—and in
many parts of the world still dominates certain sectors.”).
119
To date, consistent with the approach taken by DOJ and SEC, all
district courts that have considered this issue have concluded that this is
an issue of fact for a jury to decide. See Order, United States v. Carson,
2011 WL 5101701, No. 09-cr-77 (C.D. Cal. May 18, 2011), ECF No.
373 [hereinafter United States v. Carson]; United States v. Aguilar, 783
F. Supp. 2d 1108 (C.D. Cal. 2011); Order, United States v. Esquenazi,
supra note 44, ECF No. 309; see also Order, United States v. O’Shea, No.
09-cr-629 (S.D. Tex. Jan. 3, 2012), ECF No. 142; Order, United States
v. Nguyen, No. 08-cr-522 (E.D. Pa. Dec. 30, 2009), ECF No. 144. These
district court decisions are consistent with the acceptance by district
courts around the country of over 35 guilty pleas by individuals who
admitted to violating the FCPA by bribing officials of state-owned or
state-controlled entities. See Government’s Opposition to Defendants’
Amended Motion to Dismiss Counts One Through Ten of the
Indictment at 18, United States v. Carson, supra note 119, ECF No. 332;
Exhibit I, United States v. Carson, supra note 119, ECF No. 335 (list of
examples of enforcement actions based on foreign officials of state-owned
entities).
120
Jury Instructions, United States v. Esquenazi, supra note 44, ECF No.
520; Order at 5 and Jury Instructions, United States v. Carson, supra note
119, ECF No. 373 and ECF No. 549; Aguilar, 783 F. Supp. 2d at 1115.
121
Criminal Information, United States v. C.E. Millier Corp., et al.,
No. 82-cr-788 (C.D. Cal. Sept. 17, 1982), available at http://www.
justice.gov/criminal/fraud/fcpa/cases/ce-miller/1982-09-17-ce-millerinformation.pdf.
122
See Complaint, SEC v. Sam P. Wallace Co., Inc., et al., No. 81-cv-
1915 (D.D.C. Aug. 31, 1982); Criminal Information, United States v.
Sam P. Wallace Co., Inc., No. 83-cr-34 (D.P.R. Feb. 23, 1983), available
at http://www.justice.gov/criminal/fraud/fcpa/cases/sam-wallacecompany/1983-02-23-sam-wallace-company-information.pdf;
see also
Criminal Information, United States v. Goodyear Int’l Corp., No. 89-
cr-156 (D.D.C. May 11, 1989) (Iraqi Trading Company identified as
“instrumentality of the Government of the Republic of Iraq”), available
at http://www.justice.gov/criminal/fraud/fcpa/cases/goodyear/1989-
109
05-11-goodyear-information.pdf.
123
See Complaint, SEC v. ABB, supra note 48; Criminal Information at
3, United States v. ABB Inc., No. 10-cr-664 (S.D. Tex. Sept. 29, 2010),
ECF No. 1 [hereinafter United States v. ABB], available at http://
www.justice.gov/criminal/fraud/fcpa/cases/abb/09-20-10abbinc-info.
pdf; Constitución Política de los Estados Unidos Mexicanos [C.P.], as
amended, art. 27, Diario Oficial de la Federación [DO], 5 de Febrero de
1917 (Mex.); Ley Del Servicio Publico de Energia Electrica, as amended,
art. 1-3, 10, Diario Oficial de la Federación [DO], 22 de Diciembre de
1975 (Mex.).
124
See Indictment at 2, United States v. Esquenazi, supra note 44, ECF No.
3; Affidavit of Mr. Louis Gary Lissade at 1-9, id., ECF No. 417-2.
125
Criminal Information at 30-31, United States v. Alcatel-Lucent France,
supra note 56, ECF No. 10.
126
Id.
127
See International Anti-Bribery and Fair Competition Act of 1998,
Pub. L. 105-366 § 2, 112 Stat. 3302, 3303, 3305, 3308 (1998).
128
Section 30A(F)(1)(B) of the Exchange Act, 15 U.S.C. § 78dd-1(f )(1)
(B); 15 U.S.C. §§ 78dd-2(h)(2)(B), 78dd-3(f )(2)(B).
129
Third parties and intermediaries themselves are also liable for FCPA
violations. Section 30A(a) of the Exchange Act, 15 U.S.C. § 78dd-1(a);
15 U.S.C. §§ 78dd-2(a), and 78dd-3(a).
130
Section 30A(a)(3) of the Exchange Act, 15 U.S.C. § 78dd-1(a)(3); 15
U.S.C. §§ 78dd-2(a)(3), 78dd-3(a)(3).
131
See, e.g., Complaint, SEC v. Johnson & Johnson, No. 11-cv-686
(D.D.C. Apr. 8, 2011) [hereinafter SEC v. Johnson & Johnson] (bribes
paid through Greek and Romanian agents)), available at http://www.sec.
gov/litigation/complaints/2011/comp21922.pdf; Criminal Information,
United States v. DePuy, Inc., No. 11-cr-99 (D.D.C. Apr. 8, 2011), ECF
No. 1 [hereinafter United States v. DePuy] (bribes paid through Greek
agents), available at http://www.justice.gov/criminal/fraud/fcpa/cases/
depuy-inc/04-08-11depuy-info.pdf; Complaint, SEC v. ABB, supra note
48 (bribes paid through Mexican agents); Criminal Information, United
States v. ABB, supra note 123 (same); Criminal Information, United
States v. Int’l Harvester Co., No. 82-cr-244 (S.D. Tex. Nov. 17, 1982)
(bribes paid through Mexican agent), available at http://www.justice.
gov/criminal/fraud/fcpa/cases/international-harvester/1982-11-17-
international-harvester-information.pdf.
132
See Criminal Information, United States v. Marubeni Corp., No. 12-
cr-22 (S.D. Tex. Jan. 17, 2012), ECF No. 1 [hereinafter United States v.
Marubeni], available at http://www.justice.gov/criminal/fraud/fcpa/
cases/marubeni/2012-01-17-marubeni-information.pdf; Criminal
Information, United States v. JGC Corp., supra note 60, ECF No. 1;
Criminal Information, United States v. Snamprogetti, supra note 60, ECF
No. 1; Complaint, SEC v. ENI, S.p.A. and Snamprogetti Netherlands
B.V., No. 10-cv-2414 (S.D. Tex. July 7, 2010), ECF No. 1, available at
http://www.sec.gov/litigation/complaints/2010/comp-pr2010-119.pdf;
Criminal Information, United States v. Technip S.A., No. 10-cr-439 (S.D.
Tex. June 28, 2010), ECF No. 1 [hereinafter United States v. Technip],
available at http://www.justice.gov/criminal/fraud/fcpa/cases/technipsa/06-28-10-technip-%20information.pdf;
Complaint, SEC v. Technip,
No. 10-cv-2289 (S.D. Tex. June 28, 2010), ECF No. 1 [hereinafter SEC v.
Technip], available at http://www.sec.gov/litigation/complaints/2010/
comp-pr2010-110.pdf; Indictment, United States v. Tesler, supra note
50; Complaint, SEC v. Halliburton and KBR, supra note 90; Criminal
Information, United States v. KBR, supra note 90; Criminal Information,
United States v. Stanley, No. 08-cr-597 (S.D. Tex. Sept. 3, 2008), ECF No.
1, available at http://justice.gov/criminal/fraud/fcpa/cases/stanleya/08-
29-08stanley-info.pdf.
133
See Criminal Information, United States v. AGA Medical Corp., No.
08-cr-172, ECF No. 1 (D. Minn. June 3, 2008), available at http://www.
justice.gov/criminal/fraud/fcpa/cases/agamedcorp/06-03-08aga-info.
pdf.
134
Complaint, SEC v. Innospec, supra note 79; Criminal Information,
United States v. Innospec, supra note 79; Superseding Criminal
Information, United States v. Naaman, supra note 50, ECF No. 15,
available at http://www.justice.gov/criminal/fraud/fcpa/cases/
naamano/06-24-10naaman-supsersed-info.pdf; Complaint, SEC v.
Turner, supra note 50.
135
See sources cited supra note 68.
136
See sources cited supra note 68.
137
Section 30A(a)(3) of the Exchange Act, 15 U.S.C. § 78dd-1(a)(3); 15
U.S.C. §§ 78dd-2(a)(3), 78dd-3(a)(3).
138
See Section 30A(f )(2)(A) of the Exchange Act, 15 U.S.C. § 78dd-1(f )
(2)(A); 15 U.S.C. §§ 78dd-2(h)(3)(A), 78dd-3(f )(3)(A).
139
See Section 30A(f )(2)(B) of the Exchange Act, 15 U.S.C. § 78dd-1(f )
(2)(B); 15 U.S.C. §§ 78dd-2(h)(3)(B), 78dd-3(f )(3)(B). The “knowing”
standard was intended to cover “both prohibited actions that are taken
with ‘actual knowledge’ of intended results as well as other actions
that, while falling short of what the law terms ‘positive knowledge,’
nevertheless evidence a conscious disregard or deliberate ignorance
of known circumstances that should reasonably alert one to the high
probability of violations of the Act.” H.R. Rep. No. 100-576, at 920; see
also Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-
418, § 5003, 102 Stat. 1107, 1423-24 (1988).
140
H.R. Rep. No. 100-576, at 920 (1988).
141
Section 30A(c)(1) of the Exchange Act, 15 U.S.C. § 78dd-1(c)(1); 15
U.S.C. §§ 78dd-2(c)(1), 78dd-3(c)(1).
142
H.R. Rep. No. 100-576, at 922. The conferees also noted that “[i]n
interpreting what is ‘lawful under the written laws and regulations’ . . . the
normal rules of legal construction would apply.” Id.
143
See United States v. Kozeny, 582 F. Supp. 2d 535, 537-40 (S.D.N.Y.
2008). Likewise, the court found that a provision under Azeri law that
relieved bribe payors of criminal liability if they were extorted did
not make the bribe payments legal. Azeri extortion law precludes the
prosecution of the payor of the bribes for the illegal payments, but it does
not make the payments legal. Id. at 540-41.
144
Section 30A(c)(2)(A), (B) of the Exchange Act, 15 U.S.C. § 78dd-1(c)
(2); 15 U.S.C. §§ 78dd-2(c)(2), 78dd-3(c)(2).
145
For example, the Eighth Circuit Court of Appeals found that
providing airline tickets to a government official in order to corruptly
influence that official may form the basis for a violation of the FCPA’s
anti-bribery provisions. See Liebo, 923 F. 2d at 1311-12.
146
See generally U.S. Dept. of Justice, FCPA Op. Release 11-01
( June 30, 2011) (travel, lodging, and meal expenses of two foreign
officials for two-day trip to United States to learn about services of U.S.
adoption service provider), available at http://www.justice.gov/criminal/
fraud/fcpa/opinion/2011/11-01.pdf; U.S. Dept. of Justice, FCPA
Op. Release 08-03 ( July 11, 2008) (stipends to reimburse minimal
travel expenses of local, government-affiliated journalists attending press
conference in foreign country), available at http://www.justice.gov/
criminal/fraud/fcpa/opinion/2008/0803.pdf; U.S. Dept. of Justice,
FCPA Op. Release 07-02 (Sept. 11, 2007) (domestic travel, lodging,
and meal expenses of six foreign officials for six-week educational
program), available at http://www.justice.gov/criminal/fraud/fcpa/
opinion/2007/0702.pdf; U.S. Dept. of Justice, FCPA Op. Release
07-01 ( July 24, 2007) (domestic travel, lodging, and meal expenses
of six foreign officials for four-day educational and promotional tour
of U.S. company’s operations sites), available at http://www.justice.
gov/criminal/fraud/fcpa/opinion/2007/0701.pdf; U.S. Dept. of
Justice, FCPA Op. Release 04-04 (Sept. 3, 2004) (travel, lodging,
and modest per diem expenses of five foreign officials to participate
in nine-day study tour of mutual insurance companies), available at
http://www.justice.gov/criminal/fraud/fcpa/opinion/2004/0404.
pdf; U.S. Dept. of Justice, FCPA Op. Release 04-03 ( June 14,
2004) (travel, lodging, meal, and insurance expenses for twelve foreign
officials and one translator on ten-day trip to three U.S. cities to meet
with U.S. public sector officials), available at http://www.justice.gov/
criminal/fraud/fcpa/opinion/2004/0403.pdf; U.S. Dept. of Justice,
FCPA Op. Release 04-01 ( Jan. 6, 2004) (seminar expenses, including
receptions, meals, transportation and lodging costs, for one-and-a-half
day comparative law seminar on labor and employment law in foreign
country), available at http://www.justice.gov/criminal/fraud/fcpa/
APPENDIX
Endnotes
110
opinion/2004/0401.pdf; U.S. Dept. of Justice, FCPA Op. Release
96-01 (Nov. 25, 1996) (travel, lodging, and meal expenses of regional
government representatives to attend training courses in United
States), available at http://www.justice.gov/criminal/fraud/fcpa/
opinion/1996/9601.pdf; U.S. Dept. of Justice, FCPA Op. Release
92-01 (Feb. 1992) (training expenses so that foreign officials could
effectively perform duties related to execution and performance of jointventure
agreement, including seminar fees, airfare, lodging, meals, and
ground transportation), available at http://www.justice.gov/criminal/
fraud/fcpa/review/1992/r9201.pdf.
147
U.S. Dept. of Justice, FCPA Op. Release 11-01 ( June 30, 2011);
U.S. Dept. of Justice, FCPA Op. Release 07-02 (Sept. 11, 2007);
U.S. Dept. of Justice, FCPA Op. Release 07-01 ( July 24, 2007);
U.S. Dept. of Justice, FCPA Op. Release 04-04 (Sept. 3, 2004); U.S.
Dept. of Justice, FCPA Op. Release 04-03 ( June 14, 2004); U.S.
Dept. of Justice, FCPA Op. Release 04-01 ( Jan. 6, 2004).
148
U.S. Dept. of Justice, FCPA Op. Release 96-01 (Nov. 25, 1996).
149
U.S. Dept. of Justice, FCPA Op. Release 11-01 ( June 30, 2011);
U.S. Dept. of Justice, FCPA Op. Release 07-02 (Sept. 11, 2007);
U.S. Dept. of Justice, FCPA Op. Release 07-01 ( July 24, 2007);
U.S. Dept. of Justice, FCPA Op. Release 04-04 (Sept. 3, 2004); U.S.
Dept. of Justice, FCPA Op. Release 04-01 ( Jan. 6, 2004) .
150
U.S. Dept. of Justice, FCPA Op. Release 04-01 ( Jan. 6, 2004).
151
U.S. Dept. of Justice, FCPA Op. Release 08-03 ( July 11, 2008).
152
U.S. Dept. of Justice, FCPA Op. Release 11-01 ( June 30, 2011);
U.S. Dept. of Justice, FCPA Op. Release 92-01 (Feb. 1992).
153
U.S. Dept. of Justice, FCPA Op. Release 08-03 ( July 11, 2008).
154
Id.
155
Id.; U.S. Dept. of Justice, FCPA Op. Release 04-03 ( June 14,
2004); U.S. Dept. of Justice, FCPA Op. Release 04-01 ( Jan. 6,
2004); U.S. Dept. of Justice, FCPA Op. Release 07-01 ( July 24,
2007).
156
U.S. Dept. of Justice, FCPA Op. Release 11-01 ( June 30, 2011);
U.S. Dept. of Justice, FCPA Op. Release 07-02 (Sept. 11, 2007);
U.S. Dept. of Justice, FCPA Op. Release 07-01 ( July 24, 2007);
U.S. Dept. of Justice, FCPA Op. Release 04-04 (Sept. 3, 2004); U.S.
Dept. of Justice, FCPA Op. Release 04-03 ( June 14, 2004); U.S.
Dept. of Justice, FCPA Op. Release 04-01 ( Jan. 6, 2004).
157
U.S. Dept. of Justice, FCPA Op. Release 07-01 ( July 24, 2007);
U.S. Dept. of Justice, FCPA Op. Release 08-03 ( July 11, 2008).
158
For example, DOJ has previously approved expenditures on behalf of
family members or for entertainment purposes under certain, limited
circumstances. See, e.g., U.S. Dept. of Justice, FCPA Rev. P. Release
83-02 ( July 26, 1983) (declining to take enforcement action against
company seeking to provide promotional tour for foreign official and
wife, where both had already planned a trip to the United States at their
own expense and company proposed to pay only for all reasonable and
necessary actual domestic expenses for the extension of their travel to
allow the promotional tour, which would not exceed $5,000), available at
http://www.justice.gov/criminal/fraud/fcpa/review/1983/r8302.pdf.
159
Unlike the local law and bona fide expenditures defenses, the
facilitating payments exception is not an affirmative defense to the
FCPA. Rather, payments of this kind fall outside the scope of the
FCPA’s bribery prohibition. Prior to 1988, the “facilitating payments”
exception was incorporated into the definition of “foreign official,” which
excluded from the statute’s purview officials whose duties were primarily
ministerial or clerical. See Foreign Corrupt Practices Act of 1977, Pub.
L. No. 95-213, § 104(d)(2), 91 Stat. 1494, 1498 (1977) (providing that
the term foreign official “does not include any employee of a foreign
government or any department, agency, or instrumentality thereof whose
duties are essentially ministerial or clerical”). The original exception thus
focused on the duties of the recipient, rather than the purpose of the
payment. In practice, however, it proved difficult to determine whether
a foreign official’s duties were “ministerial or clerical.” S. Rep. No. 100-
85, at 53. Responding to criticism that the statutory language “does not
clearly reflect Congressional intent and the boundaries of the prohibited
conduct,” Congress revised the FCPA to define the exception in terms of
the purpose of the payment. H. Rep. No. 100-40, pt. 2, at 77. In doing so,
Congress reiterated that while its policy to exclude facilitating payments
reflected practical considerations of enforcement, “such payments should
not be condoned.” Id. The enacted language reflects this narrow purpose.
160
In exempting facilitating payments, Congress sought to distinguish
them as “payments which merely move a particular matter toward an
eventual act or decision or which do not involve any discretionary action,”
giving the examples of “a gratuity paid to a customs official to speed the
processing of a customs document” or “payments made to secure permits,
licenses, or the expeditious performance of similar duties of an essentially
ministerial or clerical nature which must of necessity be performed in any
event.” H.R. Rep. No. 95-640, at 8.
161
Section 30A(f )(3)(B) of the Exchange Act, 15 U.S.C. § 78dd-1(f )(3)
(B); 15 U.S.C. §§ 78dd-2(h)(4)(B), 78dd-3(f )(4)(B).
162
In a 2004 decision, the Fifth Circuit emphasized this precise point,
commenting on the limited nature of the facilitating payments exception:
A brief review of the types of routine governmental
actions enumerated by Congress shows how limited
Congress wanted to make the grease exceptions.
Routine governmental action, for instance, includes
“obtaining permits, licenses, or other official
documents to qualify a person to do business in
a foreign country,” and “scheduling inspections
associated with contract performance or inspections
related to transit of goods across country.”
Therefore, routine governmental action does not
include the issuance of every official document or
every inspection, but only (1) documentation that
qualifies a party to do business and (2) scheduling an
inspection—very narrow categories of largely nondiscretionary,
ministerial activities performed by
mid- or low-level foreign functionaries.
United States v. Kay; 359 F.3d 738, 750-51 (5th Cir. 2004) (internal
footnote omitted) (emphasis in original).
163
Non-Pros. Agreement, In re Helmerich & Payne, Inc. ( July 29, 2009)
[hereinafter In re Helmerich & Payne], available at http://www.justice.
gov/criminal/fraud/fcpa/cases/helmerich-payne/06-29-09helmerichagree.pdf;
Admin. Proceeding Order, In the Matter of Helmerich &
Payne, Inc., Exchange Act Release No. 60400 ( July 30, 2009) [hereinafter
In the Matter of Helmerich & Payne], available at http://www.sec.gov/
litigation/admin/2009/34-60400.pdf.
164
Criminal Information, Vetco Gray Controls Inc., et al., No. 07-
cr-4 No. (S.D. Tex. Jan. 5, 2007), ECF Nos. 1-2, available at http://
www.justice.gov/criminal/fraud/fcpa/cases/vetco-controls/02-06-
07vetcogray-info.pdf.
165
Complaint, SEC v. Noble Corp., No. 10-cv-4336 (S.D. Tex. Nov.
4, 2010), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/2010/comp21728.pdf; Non-Pros. Agreement, In re Noble
Corp. (Nov. 4, 2010), available at http://www.justice.gov/criminal/
fraud/fcpa/cases/noble-corp/11-04-10noble-corp-npa.pdf; see also
sources cited supra note 68.
166
Working Group on Bribery, 2009 Recommendation of the Council for
Further Combating Bribery of Foreign Public Officials in International
Business Transactions, at § VI (recommending countries should
periodically review their policies and approach to facilitation payments
and should encourage companies to prohibit or discourage facilitation
payments “in view of the corrosive effect of small facilitation payments,
particularly on sustainable economic development and the rule of law”);
Working Group on Bribery, United States: Phase 3, at 24 (Oct. 15,
2010), available at http://www.oecd.org/dataoecd/10/49/46213841.
pdf (commending United States for steps taken in line with 2009
recommendation to encourage companies to prohibit or discourage
facilitation payments).
167
Facilitating payments are illegal under the U.K. Bribery Act 2010,
which came into force on July 1, 2011, and were also illegal under
prior U.K. legislation. See Bribery Act 2010, c.23 (Eng.), available
at http://www.legislation.gov.uk/ukpga/2010/23/contents; see also
U.K. Ministry of Justice, The Bribery Act 2010: Guidance About
Procedures Which Relevant Commercial Organisations Can Put into Place
to Prevent Persons Associated with Them from Bribing (Section 9 of the
Bribery Act 2010), at 18 (2011), available at http://www.justice.gov.uk/
guidance/docs/bribery-act-2010-guidance.pdf.
168
See, e.g., Non-Pros. Agreement, In re Helmerich & Payne, supra note
163; Admin. Proceeding Order, In the Matter of Helmerich & Payne,
supra note 163.
169
In order to establish duress or coercion, a defendant must demonstrate
that the defendant was under unlawful, present, immediate, and
111
impending threat of death or serious bodily injury; that the defendant did
not negligently or recklessly create a situation where he would be forced
to engage in criminal conduct (e.g., had been making payments as part
of an ongoing bribery scheme); that the defendant had no reasonable
legal alternative to violating the law; and that there was a direct causal
relationship between the criminal action and the avoidance of the
threatened harm. See Eleventh Circuit Pattern Jury Instr., Special Instr.
No. 16 (2003); see also Fifth Circuit Pattern Jury Instr. No. 1.36 (2001);
Sixth Circuit Pattern Jury Instr. No. 6.05 (2010); Seventh Circuit Pattern
Jury Instr. No. 6.08 (1998); Ninth Circuit Pattern Jury Instr. No. 6.5
(2010); 1A Kevin F. O’Malley, Jay E. Grenig, Hon. William C. Lee,
Federal Jury Practice and Instructions § 19.02 (6th ed. 2008 & Supp.
2012).
170
S. Rep. No. 95-114, at 11.
171
Id. at 10.
172
Id. at 11.
173
United States v. Kozeny, 582 F. Supp. 2d 535, 540 n.31 (S.D.N.Y.
2008).
174
Kozeny, 582 F. Supp. 2d at 540 (citing S. Rep. No. 95-114, at 10-11).
175
Id.
176
These payments, however, must be accurately reflected in the
company’s books and records so that the company and its management
are aware of the payments and can assure that the payments were properly
made under the circumstances. For example, in one instance, a Kazakh
immigration prosecutor threatened to fine, jail, or deport employees
of a U.S. company’s subsidiary. Believing the threats to be genuine, the
employees in Kazakhstan sought guidance from senior management
of the U.S. subsidiary and were authorized to make the payments. The
employees then paid the government official a total of $45,000 using
personal funds. The subsidiary reimbursed the employees, but it falsely
recorded the reimbursements as “salary advances” or “visa fines.” The
parent company, which eventually discovered these payments, as well
as other improperly booked cash payments made to a Kazakhstani
consultant to obtain visas, was charged with civil violations of the
accounting provisions. Admin. Proceeding Order, In the Matter of
NATCO Group Inc., Exchange Act Release No. 61325 ( Jan. 11, 2010),
available at http://www.sec.gov/litigation/admin/2010/34-61325.pdf
(imposing cease-and-desist order and $65,000 civil monetary penalty).
177
See Jury Instructions at 21, United States v. Aguilar, No. 10-cr-1031
(C.D. Cal. May 16, 2011), ECF No. 511.
178
See, e.g., Pacific Can Co. v. Hewes, 95 F.2d 42, 46 (9th Cir. 1938)
(“Where one corporation is controlled by another, the former acts
not for itself but as directed by the latter, the same as an agent, and the
principal is liable for the acts of its agent within the scope of the agent’s
authority.”); United States v. NYNEX Corp., 788 F. Supp. 16, 18 n.3
(D.D.C. 1992) (holding that “[a] corporation can of course be held
criminally liable for the acts of its agents,” including “the conduct of its
subsidiaries.”).
179
Pacific Can Co., 95 F.2d at 46; NYNEX Corp., 788 F. Supp. at 18 n.3.
180
See, e.g., Standard Oil Co. v. United States, 307 F.2d 120, 127 (5th Cir.
1962).
181
Admin. Proceeding Order, In the Matter of United Industrial Corp.,
Exchange Act Release No. 60005 (May 29, 2009), available at http://
www.sec.gov/litigation/admin/2009/34-60005.pdf; see also Lit. Release
No. 21063, SEC v. Worzel (May 29, 2009), available at http://www.sec.
gov/litigation/litreleases/2009/lr21063.htm.
182
See, e.g., Philip Urofksy, What You Don’t Know Can Hurt You: Successor
Liability Resulting From Inadequate FCPA Due Diligence in M&A
Transactions, 1763 PLI/Corp. 631, 637 (2009) (“As a legal matter, when
one corporation acquires another, it assumes any existing liabilities of
that corporation, including liability for unlawful payments, regardless of
whether it knows of them.”). Whether or not successor liability applies to
a particular corporate transaction depends on the facts involved and state,
federal, and, potentially, foreign law.
183
See, e.g., Carolyn Lindsey, More Than You Bargained for: Successor
Liability Under the U.S. Foreign Corrupt Practices Act, 35 Ohio N.U.
L. Rev. 959, 966 (2009) (“Allowing a company to escape its debts and
liabilities by merging with another entity is considered to lead to an
unjust result.”).
184
See, e.g., Melrose Distillers, Inc. v. United States, 359 U.S. 271, 274
(1959) (affirming criminal successor liability for antitrust violations);
United States v. Alamo Bank of Texas, 880 F.2d 828, 830 (5th Cir. 1989)
(affirming criminal successor liability for Bank Secrecy Act violations);
United States v. Polizzi, 500 F.2d 856, 907 (9th Cir. 1974) (affirming
criminal successor liability for conspiracy and Travel Act violations);
United States v. Shields Rubber Corp., 732 F. Supp. 569, 571-72 (W.D.
Pa. 1989) (permitting criminal successor liability for customs violations);
see also United States v. Mobile Materials, Inc., 776 F.2d 1476, 1477 (10th
Cir. 1985) (allowing criminal post-dissolution liability for antitrust, mail
fraud, and false statement violations);.
185
Complaint, SEC v. The Titan Corp., No. 05-cv-411 (D.D.C. Mar. 1,
2005) (discovery of FCPA violations during pre-acquisition due diligence
protected potential acquiring company and led to termination of merger
agreement), available at http://www.sec.gov/litigation/complaints/
comp19107.pdf; Criminal Information, United States v. Titan Corp.,
No. 05-cr-314 (S.D. Cal. Mar. 1, 2005) (same) [hereinafter United States
v. Titan Corp.], available at http://www.justice.gov/criminal/fraud/fcpa/
cases/titan-corp/03-01-05titan-info.pdf.
186
For a discussion of declinations, see Chapter 7.
187
See Complaint, SEC v. El Paso Corp., No. 07-cv-899 (S.D.N.Y. Feb. 7,
2007), ECF No. 1 [hereinafter SEC v. El Paso Corp.] (charging company
with books and records and internal controls charges for improper
payments to Iraq under U.N. Oil-for-Food Programme), available at
http://www.sec.gov/litigation/complaints/2007/comp19991.pdf.
188
Complaint, SEC v. Alliance One Int’l, Inc., No. 10-cv-1319 (D.D.C.
Aug. 6, 2010), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/2010/comp21618-alliance-one.pdf; Non-Pros. Agreement,
In re Alliance One Int’l, Inc. (Aug. 6, 2010), available at http://www.
justice.gov/criminal/fraud/fcpa/cases/alliance-one/08-06-10allianceone-npa.pdf;
Criminal Information, United States v. Alliance One Int’l
AG, No. 10-cr-17 (W.D. Va. Aug. 6, 2010), ECF No. 3, available at
http://www.justice.gov/criminal/fraud/fcpa/cases/alliance-one/08-06-
10alliance-one-info.pdf; Criminal Information, United States v. Alliance
One Tobacco Osh, LLC, No. 10-cr-16 (W.D. Va. Aug. 6, 2010), ECF
No. 3, available at http://www.justice.gov/criminal/fraud/fcpa/cases/
alliance-one/08-06-10alliance-one-tobaccoinfo.pdf.
189
See Criminal Information, United States v. Syncor Taiwan, Inc., No.
02-cr-1244 (C.D. Cal. Dec. 5, 2002), ECF No. 1, available at http://
www.justice.gov/criminal/fraud/fcpa/cases/syncor-taiwan/12-05-
02syncor-taiwan-info.pdf; Plea Agreement, United States v. Syncor
Taiwan, Inc., No. 02-cr-1244 (C.D. Cal. Dec. 9, 2002), ECF No. 14,
available at http://www.justice.gov/criminal/fraud/fcpa/cases/syncortaiwan/12-03-02syncor-taiwan-plea-agree.pdf.
190
See Complaint, SEC v. Syncor Int’l Corp., No. 02-cv-2421 (D.D.C.
Dec. 10, 2002), ECF No. 1, available at http://www.sec.gov/litigation/
complaints/comp17887.htm; SEC v. Syncor International Corp., SEC
Lit. Rel. 17997, (Dec. 10, 2002), available at http://www.sec.gov/
litigation/litreleases/lr17887.htm.
191
See Complaint, SEC v. York Int’l Corp., supra note 115; Criminal
Information, United States v. York Int’l Corp., supra note 115.
192
See Criminal Information, United States v. Latin Node, Inc., No.
09-cr-20239 (S.D. Fla. Mar. 23, 2009), ECF No. 1, available at http://
www.justice.gov/criminal/fraud/fcpa/cases/litton-applied/03-23-
09latinnode-info.pdf; eLandia Int’l Inc., Annual Report (Form 10-K),
at 20 (Apr. 2, 2009), available at http://www.sec.gov/Archives/edgar/
data/1352819/000119312509070961/d10k.htm.
193
See Criminal Information, United States v. Salvoch, No. 10-cr-20893
(S.D. Fla. Dec. 17, 2010), ECF No. 3, available at http://www.justice.
gov/criminal/fraud/fcpa/cases/salvoch/12-17-10salvoch-info.pdf;
Criminal Information, United States v. Vasquez, No. 10-cr-20894 (S.D.
Fla. Dec. 17, 2010), ECF No. 3, available at http://www.justice.gov/
criminal/fraud/fcpa/cases/vasquezjp/12-17-10vasquez-juan-info.pdf;
Indictment, United States v. Granados, et al., No. 10-cr-20881, (S.D.
APPENDIX
Endnotes
112
Fla. Dec. 14, 2010), ECF No. 3, available at http://www.justice.gov/
criminal/fraud/fcpa/cases/granados-jorge/12-21-10granados-indict.pdf.
194
See Deferred Pros. Agreement, United States v. Snamprogetti, supra
note 60, ECF No. 3, available at http://www.justice.gov/criminal/fraud/
fcpa/cases/snamprogetti/07-07-10snamprogetti-dpa.pdf.
195
Compare Criminal Information, United States v. Snamprogetti, supra
note 60, with Deferred Pros. Agreement, United States v. Snamprogetti,
supra note 60, ECF No. 3.
196
See Press Release, General Electric Co., General Electric Agrees to
Acquire InVision (Mar. 15, 2004), available at http://www.ge.com/files/
usa/company/investor/downloads/sharpeye_press_release.pdf; Press
Release, U.S. Dept. of Justice, InVision Tech. Inc. Enters into Agreement
with the United States (Dec. 6, 2004), available at http://www.justice.
gov/opa/pr/2004/December/04_crm_780.htm; Company News; G.E.
Gets InVision, a Maker of Bomb Detectors, N.Y. Times, Dec. 7, 2004, at
C4.
197
Non-Pros. Agreement, In re InVision (Dec. 3, 2004), available at
http://www.justice.gov/criminal/fraud/fcpa/cases/invision-tech/12-03-
04invisiontech-agree.pdf; Non-Pros. Agreement, In re General Elec. Co.,
(Dec. 3, 2004), available at http://www.justice.gov/criminal/fraud/fcpa/
cases/invision-tech/12-03-04invisiontech-agree-ge.pdf; Complaint, SEC
v. GE InVision, Inc., f/k/a InVision Technologies, Inc., No. 05-cv-660,
(N.D. Cal. Feb. 14, 2005), ECF No. 1, available at http://www.sec.gov/
litigation/complaints/comp19078.pdf.
198
See U.S. Dept. of Justice, FCPA Op. Release 08-02 ( June 13,
2008), available at http://www.justice.gov/criminal/fraud/fcpa/
opinion/2008/0802.pdf; see also Press Release, U.S. Dept. of Justice,
Pfizer H.C.P. Corp. Agrees to Pay $15 Million Penalty to Resolve Foreign
Bribery Investigation (Aug. 7, 2012) (“In the 18 months following its
acquisition of Wyeth, Pfizer Inc., in consultation with the department,
conducted a due diligence and investigative review of the Wyeth business
operations and integrated Pfizer Inc.’s internal controls system into
the former Wyeth business entities. The department considered these
extensive efforts and the SEC resolution in its determination not to
pursue a criminal resolution for the pre-acquisition improper conduct of