White Collar Crime and the Foreign Corrupt Practices Act
Enacted in 1977, the Foreign Corrupt Practices Act (FCPA) makes it unlawful for certain individuals to make payments to foreign government officials in an effort to obtain or retain business. Those who are convicted under the FCPA face serious penalties, so if you are being investigated for fraud in relation to your foreign business dealings, please contact an experienced white collar crime attorney as soon as possible.
A large portion of the FCPA deals with bribery and prohibits anyone from using interstate commerce to either directly or indirectly make a payment to a foreign official in an effort to induce him or her to obtain or retain business for the payor. In fact, it is unlawful for anyone to even offer, authorize, or promise payment. The anti-bribery provisions of the FCPA apply to the following individuals or entities:
- All U.S. residents and businesses;
- Certain foreign securities issuers; and
- Foreign firms or individuals conducting business while in the U.S.
The FCPA extends to all public companies that are listed on the U.S. stock exchanges as well as their:
- Stockholders; and
- Agents, which can include consultants, distributors, and joint-venture partners.
To help ensure that these provisions are fulfilled, the FCPA requires companies who have securities listed in the U.S. to abide by certain accounting rules, which include:
- Making and keeping records that accurately and fairly reflect the corporation’s business transactions; and
- Devising and maintaining a system of internal accounting controls.
The FCPA is enforced by both the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) and failing to comply with the FCPA anti-bribery provisions can have serious consequences. For instance, companies are often forced to pay substantial civil penalties of up to $2 million for each violation, while individuals are subject to fines of up to $100,000 and imprisonment for up to five years. Violating the accounting provisions can also result in heavy fines and jail time. Violators also face suspension from contracting with the federal government or dealing with certain banks, as well as revocation of export privileges.
Fortunately, there are a variety of defenses that someone who has been charged with violating the FCPA can raise, including that:
- He or she did not intend to wrongfully influence the recipient;
- He or she did not know that the conduct was unlawful (although this defense is not available to corporations);
- A payment was lawful under the laws of the foreign country at issue;
- The money spent by the company was reasonable and directly related to the performance of a contract, marketing, or promotion;
- The payments were made in furtherance of routine governmental action that involved non- discretionary acts; and
- The payments were made under imminent threat of physical harm.
Contact us Today to Speak With an Experienced White Collar Crime Attorney
If your company is being investigated for violating the FCPA, please contact Jeffrey S. Weiner, P.A. Criminal Defense Attorneys at 305-670-9919 today. Our South Florida attorneys are prepared to help you today.