Significant FCPA developments continued apace during the first six months of 2013. After a relative downtick in 2012, the first half of 2013 saw criminal enforcement of the statute return to the robust levels of recent years. With approximately 60 devoted prosecutors and enforcement attorneys, whose efforts are frequently supplemented by their colleagues in the U.S. Attorneys’ and regional enforcement offices across the country, the Government’s efforts to enforce the statute have never been stronger.
This client update provides an overview of the Foreign Corrupt Practices Act (“FCPA”) as well as domestic and international cross-border anti-corruption enforcement, litigation, and policy developments from the first half of 2013. There is much for us to report—the last six months witnessed a series of judicial decisions that further define the FCPA’s scope, a plethora of enforcement actions, Corporate America’s response to the U.S. government’s Resource Guide to the U.S. Foreign Corrupt Practices Act, and increasingly vigorous anti-corruption enforcement and legislative activities from around the world.
The FCPA’s anti-bribery provisions make it illegal to corruptly offer or provide money or anything of value to officials of foreign governments or foreign political parties with the intent to obtain or retain business. These provisions apply to “issuers,” “domestic concerns,” and “agents” acting on behalf of issuers and domestic concerns, as well as to “any person” that violates the FCPA while in the territory of the United States. The term “issuer” covers any business entity that is registered under 15 U.S.C. § 78l or that is required to file reports under 15 U.S.C. § 78o(d). In this context, foreign issuers whose American Depository Receipts (“ADRs”) are listed on a U.S. exchange are “issuers” for purposes of the FCPA. The term “domestic concern” is even broader and includes any U.S. citizen, national, or resident, as well as any business entity that is organized under the laws of a U.S. state or that has its principal place of business in the United States.