The US Department of Justice

The US Department of Justice

September 01, 2012

The US Department of Justice is expected to issue new guidance on the Foreign Corrupt Practices Act by October.

The Foreign Corrupt Practices Act makes it a crime for US citizens and companies to offer anything of value to a foreign official or official of an international public organization in an effort to win or retain business or secure any improper advantage. Foreign companies that raise equity in US capital markets are also subject to the statute.

The guidance is expected to address who is considered a “foreign official.” A US appeals court is considering whether employees of the government-owned telephone company in Haiti are foreign officials in a closely-watched case called United States v. Esquenzai. Two Terra Telecommunications Corp. executives were given long prison sentences — 15 years for the company president and seven years for a company vice president — for participating in a scheme to bribe Haiti Telco employees. As many as 60% of FCPA enforcement actions are based on the position that government-owned enterprises are instrumentalities of the government.

The US Chamber of Commerce has also been lobbying for an affirmative defense for companies with strong compliance programs.

Keith Martin