The FCPA is a law that prohibits bribery of foreign officials, which can take the form of giving them gifts, paying their expenses, or in some instances paying them directly. In recent years, the FCPA has become an essential tool in the fight against bribery and corruption. It is a tool that makes it possible to prosecute companies and individuals that bribe foreign officials. However, there have been times when innocent people have been swept up in this sort of investigation. If this happens to you, what do you do?
What Is The Foreign Corrupt Practices Act
In accordance with the Foreign Corrupt Practices Act of 1977, US companies are prohibited from engaging in foreign bribery or offers of payments to influence the actions of foreign officials to obtain or retain business. While the FCPA is often viewed as a relatively recent development, US companies have been under its purview for over fifty years. Since it was enacted, Congress has repeatedly amended the Act, most recently in 2008. It is a broadly-worded federal law that prohibits companies from bribing foreign officials to win business.
Who Is Responsible For Enforcing The Foreign Corrupt Practices Act?
The Securities and Exchange Commission (SEC) and the Department of Justice jointly enforce the Foreign Corrupt Practices Act. As the agency with jurisdiction over FCPA compliance and whistleblower rewards, the SEC is responsible for civil enforcement of the FCPA pertaining to accounting provisions. In terms of bribery, both the criminal and civil authorities of the US Department of Justice are responsible. It is important to note that jail time is not threatened in civil enforcement while it is in criminal enforcement. However, the burden of proof is lower when it comes to civil cases.
Is There A Risk Of FCPA Noncompliance?
Companies that conduct business with foreign entities face a threat of federal prosecution unless they implement compliance programs carefully designed to prevent, detect, and respond appropriately to transactions that could violate the FCPA. Compliance programs are not only helpful in preventing and remedying FCPA violations, but they are also a sign of a company’s commitment to following the law, which allows federal authorities to view the company positively.
Examples Of High Profile FCPA Cases
Since its inception, there have been a few high-profile cases that became sensational due to their scope. Some of the more well-known cases include:
- Siemens Aktiengeselschaft: Siemens AG, a German manufacturer of industrial and consumer products, pleaded guilty to bribery and accounting violations. They reached a settlement agreement in December 2008 with the United States Department of Justice.
- BAE Systems: In addition to FCPA violations, BAE Systems was charged with violating the Arms Export Control Act (AECA) and International Traffic in Arms Regulations (ITAR), as well as falsifying its FCPA compliance program.
- KBR/Halliburton: Several payments totaling more than $200 million were made to high and low-ranking Nigerian government officials through the use of agents based in two separate countries to secure contract awards for engineering, procurement, and construction (EPC) work. Over $6 billion in construction contracts were won by KBR and Halliburton.
Total SA: Total paid over $60 million in consulting services under the guise of legal business expenses to one of Iran’s top officials in exchange for the official’s help in securing contracts with the National Iranian Oil Company (NIOC) for the development of major Iranian oil and gas fields.
How To Deal With An Indictment
The examples listed above are incredibly high-profile cases involving vast sums of money; however, the FCPA can prosecute any company or individual, no matter their size. You can click here for more info about going into detail. But, if you or your business has come under investigation, you can do a few things to get started right away.
Find A Law Firm With Experience In FCPA Litigation
As soon as you are aware that a case is being set up against you, it would be best to immediately look for a qualified attorney who understands the complexities of this particular Act. An attorney will be able to discuss with your the following:
- They will check the validity of the case or whether it will stand or not.
- If the case is found to be illegitimate, then your attorney might be in a position to rectify the issue without it going any further.
- If the case is founded on truth, then they will begin preparations for your defense.
You should not waiver on getting the help of a qualified lawyer immediately for two reasons. Firstly, you will need clarity on the situation, and secondly, it shows the DOJ that you are interested in sorting out the problem.
Assess The Size Of The Investigation
Your lawyer will analyze the case and inform you of how large the impending case will become. The information you receive from this report can help you to prepare mentally for what lies ahead. This initial report will also find out places where you will be best positioned to defend yourself.
Get all relevant documentation ready
This kind of case is often paperwork-heavy, so it is good to gather all documents that pertain to the issue. This could mean going through your archives, both physical and digital, and sorting them in date order. Once the investigation begins, you will demonstrate your seriousness and desire to solve the case as quickly as possible by having everything in order.
Prepare Your Staff
There is a high probability that members of your management team and lower-ranking employees will be required to provide evidence. Preparing them in advance is a good idea.
Cooperate With Agencies Of The Federal Government
This is a severe case to be indicted on, and if you show signs of obstruction or discordancy, it will be looked on poorly and could impact your case negatively.
To be charged with breaking the FCPA is very challenging, and you will need an outstanding attorney with deep knowledge of how this Act works in practice. They will advise you properly and inform you of the steps you will need to take.
