In 1977, the Foreign Corrupt Practices Act (FCPA) became law. This act makes it illegal to make payments of bribes to foreign officials to help in getting or keeping business. Its enforcement of this prohibited conduct applies to any place in the world. This act covers individuals and publicly traded companies, their agents, officers, stockholders, directors, and employees.

History
Paying foreign officials to obtain contracts, as well as expediting legal processes, was a normal part of doing business worldwide into the 1970s. Corporations regularly wrote-off bribes on their tax returns as normal business expenses. The Act was supported by American businesses that struggled to compete in overseas markets. The FCPA helped level the playing field for U.S. Companies.

Accurate Books And Records
The FCPA mandates those responsible in a business maintain accurate books and records. They must maintain a system of internal controls that provide reasonable assurances that all transactions are properly executed. All assets accessed must be accounted for to be in compliance. Civil enforcement actions may be brought against violators of the accounting or anti-bribery provisions of the FCPA. The Department of Justice (DOJ) and the SEC are both responsible for FCPA enforcement.

Bribery Provisions
The Act is designed to deter abuses of power and corruption around the world. It applies to any person or company trying to work through a third party. This includes partners in a joint venture, consultants, and more. The FCPA is also designed so the use of proxies to perform bribery doesn’t shield an individual or company from guilt.

Internal Controls
There is a section of the FCPA that details accounting transparency guidelines. These are intended to work with the provisions covering anti-bribery. It requires companies with securities listed in the United States to adhere to specified accounting provisions. These provisions detail ways of recording assets so it is very difficult to hide corrupt payments. Any corporation covered by the FCPA must create and maintain internal controls. This will make certain the company’s transactions are properly recorded.

FCPA Violations
The DOJ and SEC actively enforce the Foreign Corrupt Practices Act. The SEC has created a special unit and made the unit part of its enforcement division. This special unit is designed to focus on matters that are covered by the FCPA. Those who violate this Act can be subjected to penalties, sanctions, or both. They could have civil or criminal actions charged against them. A company could be fined an amount that is twice that of the anticipated benefit from the violation. Corporate entities guilty of breaching the FCPA could be forced to have an independent auditor verify future compliance. An individual guilty of breaking the FCPA may face imprisonment.

Criminal Penalties
Criminal prosecutions under the FCPA are handled by the DOJ. Each anti-bribery violation could result in a business or corporation being fined as much as $2 million. Individuals in companies found guilty of criminal charges will receive significant fines and face the possibility of being incarcerated. An individual could be fined as much as $100,000 and be incarcerated for up to five years.

Criminal Resolutions
The subject criminal charges from the DOJ for FCPA violations are often resolved without the need to go to trial. This involves a negotiated resolution. These types of resolutions could involve a non-prosecution agreement, plea agreement as well as a deferred prosecution agreement.

Civil Penalties
These can be imposed by the SEC and DOJ. Each single civil violation of an individual, corporation, or business could result in fines of up to $16,000 per violation. Every violation of an accounting provision is determined by a specific offense. The fines for this could be more than $700,000 for a business entity. It could be from $7,500 to over $140,000 for an individual. A fine can’t be more than a designated amount or the value of the gain experienced by the defendant’s violation.

During recent years, United States enforcement authorities have brought charges and obtained convictions for bribing against many non-U.S. Officials by foreign corporations. Should someone be charged with an FCPA violation, they need to contact an experienced attorney. These legal experts will know the best way to proceed after being charged with an FCPA violation. It is a complicated situation where an innocent mistake could result in serious consequences.