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Foreign Corrupt Practices Act Continues to Spread Its Wings

November 17, 2010, by The McKellar Law Firm, PLLC

Federal Criminal Defense Lawyers will occasionally encounter clients charged with violating The Foreign Corrupt Practices Act of 1977, 15 U.S.C. ยงยง 78dd-1, et seq. ("FCPA"), which makes it illegal for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. In other words, bribing foreign government officials can put a client in jail and/or result in substantial financial penalties.

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Lanny Breuer, Assistant Attorney General for the Criminal Division of the Justice Department, recently said that in the past year, the Justice Department has imposed the most criminal penalties in FCPA-related cases in any single 12-month period ever, including more than $1 billion worth of penalties. He further said that in 2009 and 2010, the Justice Department has charged over 50 individuals and collected nearly $2 billion for FCPA violations and there are currently roughly 35 defendants awaiting trial on FCPA charges.

According to the Department of Justice's Lay-Person's Guide to the FCPA, the following affirmative defenses are available to someone or some entity charged with violating the FCPA:

A person charged with a violation of the FCPA's anti-bribery provisions may assert as a defense that the payment was lawful under the written laws of the foreign country or that the money was spent as part of demonstrating a product or performing a contractual obligation. Whether a payment was lawful under the written laws of the foreign country may be difficult to determine. You should consider seeking the advice of counsel or utilizing the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure when faced with an issue of the legality of such a payment. Moreover, because these defenses are "affirmative defenses," the defendant is required to show in the first instance that the payment met these requirements. The prosecution does not bear the burden of demonstrating in the first instance that the payments did not constitute this type of payment.

Additional Resources
Dept. of Justice Site on FCPA
"FCPA: Strong and Getting Stronger," Wall Street Journal (Online), November 16, 2010