The FCPA Resource Guide - Chapter 1, Annotated

Introduction To the Annotated FCPA Resource Guide

One of the greatest resources available on the Foreign Corrupt Practices Act (FCPA) is the Resource Guide produced by the staff of the Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission. The Second Edition of the guide was released in July 2020 and covers almost every FCPA topic with examples and insights into compliance and non-compliance alike. In an effort to add to the immense work of the DOJ and SEC in producing the guide, FTI Law has embarked on providing an annotated version of the Second Edition. In this annotated version, we have supplemented the Second Edition with insights, updates, court decisions, FCPA settlements to enrich the guide.

The annotation process is ongoing and anyone wishing to contribute can contact our team to assist. As stated in the guide itself, the following information is not intended to substitute for the advice of legal counsel on specific issues related to the FCPA.


Congress enacted the U.S. Foreign Corrupt Practices Act (FCPA or the Act) in 1977 in response to revelations of widespread bribery of foreign officials by U.S. companies. The Act was intended to halt those corrupt practices, create a level playing field for honest businesses, and restore public confidence in the integrity of the marketplace.3

The FCPA contains both anti-bribery and accounting provisions. The anti-bribery provisions prohibit U.S. persons and businesses (domestic concerns), U.S. and foreign public companies listed on stock exchanges in the United States or that are required to file periodic reports with the Securities and Exchange Commission (issuers), and certain foreign persons and businesses acting while in the territory of the United States (territorial jurisdiction) from making corrupt payments to foreign officials to obtain or retain business. The accounting provisions require issuers to make and keep accurate books and records and to devise and maintain an adequate system of internal accounting controls. The accounting provisions also prohibit individuals and businesses from knowingly falsifying books and records or knowingly circumventing or failing to implement a system of internal controls.

The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) share FCPA enforcement authority and are committed to fighting foreign bribery through robust enforcement. An important component of this effort is education, and this resource guide, prepared by DOJ and SEC staff, aims to provide businesses and individuals with information to help them abide by the law, detect and prevent FCPA violations, and implement effective compliance programs.

The Costs of Corruption

Corruption is a global problem. In the four decades since Congress enacted the FCPA, the extent of corporate bribery has become clearer and its ramifications in a transnational economy starker. Corruption impedes economic growth by diverting public resources from important priorities such as health, education, and infrastructure. It undermines democratic values and public accountability and weakens the rule of law.4 And it threatens stability and security by facilitating criminal activity within and across borders, such as the illegal trafficking of people, weapons, and drugs.5 International corruption also undercuts good governance and impedes U.S. efforts to promote freedom and democracy, end poverty, and combat crime and terrorism across the globe.6

Corruption is also bad for business. Corruption is anti-competitive, leading to distorted prices and disadvantaging honest businesses that do not pay bribes. It increases the cost of doing business globally and inflates the cost of government contracts in developing countries.7 Corruption also introduces significant uncertainty into business transactions: Contracts secured through bribery may be legally unenforceable, and paying bribes on one contract often results in corrupt officials making ever-increasing demands.8 Bribery has destructive effects within a business as well, undermining employee confidence in a company’s management and fostering a permissive atmosphere for other kinds of corporate misconduct, such as employee self-dealing, embezzlement,9 financial fraud,10 and anti-competitive behavior.11 Bribery thus raises the risks of doing business, putting a company’s bottom line and reputation in jeopardy. Companies that pay bribes to win business ultimately undermine their own long-term interests and the best interests of their investors.

Historical Background

Congress enacted the FCPA in 1977 after revelations of widespread global corruption in the wake of the Watergate political scandal. SEC discovered that more than 400 U.S. companies had paid hundreds of millions of dollars in bribes to foreign government officials to secure business overseas.12 SEC reported that companies were using secret “slush funds” to make illegal campaign contributions in the United States and corrupt payments to foreign officials abroad and were falsifying their corporate financial records to conceal the payments.13

Congress viewed passage of the FCPA as critical to stopping corporate bribery, which had tarnished the image of U.S. businesses, impaired public confidence in the financial integrity of U.S. companies, and hampered the efficient functioning of the markets.14

No problem does more to alienate citizens from their political leaders and institutions, and to undermine political stability and economic development, than endemic corruption among the government, political party leaders, judges, and bureaucrats.

– USAID Anti-Corruption Strategy

As Congress recognized when it passed the FCPA, corruption imposes enormous costs both at home and abroad, leading to market inefficiencies and instability, sub-standard products, and an unfair playing field for honest businesses.15 By enacting a strong foreign bribery statute, Congress sought to minimize these destructive effects and help companies resist corrupt demands, while addressing the destructive foreign policy ramifications of transnational bribery.16 The Act also prohibited off- the-books accounting through provisions designed to “strengthen the accuracy of the corporate books and records and the reliability of the audit process which constitute the foundations of our system of corporate disclosure.”17

In 1988, Congress amended the FCPA to add two affirmative defenses: (1) the local law defense; and (2) the reasonable and bona fide promotional expense defense.18 Congress also requested that the President negotiate an international treaty with members of the Organisation for Economic Co-operation and Development (OECD) to prohibit bribery in international business transactions by many of the United States’ major trading partners.19 Subsequent negotiations at the OECD culminated in the Convention on Combating Bribery of Foreign Officials in International Business Transactions (Anti-Bribery Convention), which, among other things, required parties to make it a crime to bribe foreign officials.20

In 1998, the FCPA was amended to conform to the requirements of the Anti-Bribery Convention. These amendments expanded the FCPA’s scope to:

  1. include payments made to secure “any improper advantage”;
  2. reach certain foreign persons who commit an act in furtherance of a foreign bribe while in the United States;
  3. cover public international organizations in the definition of “foreign official”;
  4. add an alternative basis for jurisdiction based on nationality; and
  5. apply criminal penalties to foreign nationals employed by or acting as agents of U.S. companies.21

The Anti-Bribery Convention came into force on February 15, 1999, with the United States as a founding party.

National Landscape: Interagency Efforts

DOJ and SEC share enforcement authority for the FCPA’s anti-bribery and accounting provisions.22 They also work with many other federal agencies and law enforcement partners to investigate and prosecute FCPA violations, reduce bribery demands through good governance programs and other measures, and promote a fair playing field for U.S. companies doing business abroad.

Department of Justice

DOJ has criminal FCPA enforcement authority over “issuers” (i.e., public companies) and their officers, directors, employees, agents, or stockholders acting on the issuer’s behalf. DOJ also has both criminal and civil enforcement responsibility for the FCPA’s anti-bribery provisions over “domestic concerns”—which include (a) U.S. citizens, nationals, and residents and (b) U.S. businesses and their officers, directors, employees, agents, or stockholders acting on the domestic concern’s behalf—and certain foreign persons and businesses that act in furtherance of an FCPA violation while in the territory of the United States. Within DOJ, the Fraud Section of the Criminal Division has primary responsibility for all FCPA matters.23 The FCPA Unit within the Fraud Section handles all FCPA matters for DOJ, and regularly works jointly with U.S. Attorneys’ Offices around the country.

DOJ maintains a website dedicated to the FCPA and its enforcement at The website provides translations of the FCPA in numerous languages, relevant legislative history, and selected documents from FCPA-related prosecutions and resolutions since 1977, including charging documents, plea agreements, deferred prosecution agreements, non-prosecution agreements, press releases, and other relevant pleadings and court decisions. The website also provides copies of opinions issued in response to requests by companies and individuals under DOJ’s FCPA opinion procedure. The procedures for submitting a request for an opinion can be found at and are discussed further in Chapter 9. Individuals and companies wishing to disclose information about potential FCPA violations are encouraged to contact the FCPA Unit at the telephone number or email address below.

Securities and Exchange Commission

SEC is responsible for civil enforcement of the FCPA over issuers and their officers, directors, employees, agents, or stockholders acting on the issuer’s behalf. SEC’s Division of Enforcement has responsibility for investigating and prosecuting FCPA violations. In 2010, SEC’s Enforcement Division created a specialized FCPA Unit, with attorneys in Washington, D.C. and in regional offices around the country, to focus specifically on FCPA enforcement.

The Unit investigates potential FCPA violations; facilitates coordination with DOJ’s FCPA program and with other federal and international law enforcement partners; uses its expert knowledge of the law to promote consistent enforcement of the FCPA; analyzes tips, complaints, and referrals regarding allegations of foreign bribery; and conducts public outreach to raise awareness of anti-corruption efforts and good corporate governance programs.

The FCPA Unit maintains a “Spotlight on FCPA” section on SEC’s website at The website, which is updated regularly, provides general information about the Act and links to all SEC enforcement actions involving the FCPA, including both federal court actions and administrative proceedings, and contains other useful information.

Individuals and companies with information about possible FCPA violations by issuers may report them to the Enforcement Division via SEC’s online Tips, Complaints and Referral system, They may also submit information to SEC’s Office of the Whistleblower through the same online system or by contacting the Office of the Whistleblower at (202) 551-4790. Additionally, investors with questions about the FCPA can call the Office of Investor Education and Advocacy at (800) SEC-0330. For more information about SEC’s Whistleblower Program, under which certain eligible whistleblowers may be entitled to a monetary award if their information leads to certain SEC actions, see Chapter 8.

Law Enforcement Partners

DOJ’s FCPA Unit regularly works with the Federal Bureau of Investigation (FBI) to investigate potential FCPA violations. The FBI’s International Corruption Unit has primary responsibility for international corruption and fraud investigations and coordinates the FBI’s national FCPA enforcement program. The FBI also has dedicated FCPA squads of FBI special agents that are responsible for investigating many, and providing support for all, of the FBI’s FCPA investigations. In addition, Homeland Security Investigations, the Internal Revenue Service – Criminal Investigations, and the Postal Inspection Service regularly investigate potential FCPA violations. A number of other agencies are also involved in the fight against international corruption, including the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, and the Department of Treasury’s Office of Foreign Assets Control and Financial Crimes Enforcement Network.

Departments of Commerce and State

Besides enforcement efforts by DOJ and SEC, the U.S. government is also working to address corruption abroad and level the playing field for U.S. businesses through the efforts of the Departments of Commerce and State. Both agencies advance anti-corruption and good governance initiatives globally and regularly assist U.S. companies doing business overseas in several important ways. Both agencies encourage U.S. businesses to seek the assistance of U.S embassies when they are confronted with bribe solicitations or other corruption-related issues overseas.24

The Department of Commerce offers a number of important resources for businesses, including the International Trade Administration’s United States and Foreign Commercial Service (Commercial Service). The Commercial Service has export and industry specialists located in over 100 U.S. cities and 70 countries who are available to provide counseling and other assistance to U.S. businesses, particularly small and medium-sized companies, regarding exporting their products and services. The Commercial Service maintains a website with online resources to help companies perform due diligence on markets and partners, at: For example, Country Commercial Guides provide market conditions, opportunities, regulations, and business customs for more than 70 major markets, prepared by ITA trade professionals at U.S. embassies worldwide.25 Commercial Service specialists can also help a U.S. company conduct background checks when choosing business partners or agents overseas. The International Company Profile Program, for instance, can be part of a U.S. company’s evaluation of potential overseas business partners.26 U.S. companies may contact the Commercial Service through its website, or directly at its domestic and foreign offices.27

Additionally, the Department of Commerce’s Office of the General Counsel maintains a website, that contains anti-corruption resources and a list of international conventions and initiatives. The Office of Trade Agreements Negotiations and Compliance in the Department of Commerce’s International Trade Administration also hosts a website with anti- bribery resources, This website contains a link to an online form through which U.S. companies can report allegations of foreign bribery by foreign competitors in international business transactions. More information on resolving trade barriers can be found at:

The Departments of Commerce and State also provide advocacy support, when determined to be in the national interest, for U.S. companies bidding for foreign government contracts. The Department of Commerce’s Advocacy Center, for example, supports U.S. businesses competing against foreign companies for international contracts, such as by arranging for the delivery of an advocacy message by U.S. government officials or assisting with unanticipated problems such as suspected bribery by a competitor.29

The Department of State’s Bureau of Economic and Business Affairs (specifically, its Office of Commercial and Business Affairs) similarly assists U.S. firms doing business overseas by providing advocacy on behalf of U.S. businesses and identifying risk areas for U.S. businesses; more information is available on its website, Also, the Department of State’s economic officers serving overseas provide commercial advocacy and support for U.S. companies at the many overseas diplomatic posts where the Commercial Service is not represented.

The Department of State promotes U.S. government interests in addressing corruption internationally through country-to-country diplomatic engagement; development of and follow-through on international commitments relating to corruption; promotion of high-level political engagement (e.g., the G20 Anticorruption Action Plan); public outreach in foreign countries; and support for building the capacity of foreign partners to combat corruption.

In fiscal year 2019, the U.S. government provided more than $112 million for anti-corruption and related good governance assistance abroad.

The Department of State’s Bureau of International Narcotics and Law Enforcement Affairs (INL) manages U.S. participation in many multilateral anti-corruption political and legal initiatives at the global and regional level. INL also funds and coordinates significant efforts to assist countries with combating corruption through legal reform, training, and other capacity-building efforts. Inquiries about the U.S. government’s general anti- corruption efforts and implementation of global and regional anti-corruption initiatives may be directed to INL on its website, governance/, or by email to: anti-corruption@state. gov. In addition, the U.S. Agency for International Development (USAID) has developed several anti-corruption programs and publications, information about which can be found at

International Landscape: Global Anti-Corruption Efforts

There has been a growing international consensus that corruption must be combated, and the United States and other countries are parties to a number of international anti-corruption conventions. Under these conventions, countries that are parties undertake commitments to adopt a range of preventive and criminal law measures to combat corruption. The conventions incorporate review processes that allow the United States to monitor other countries to ensure that they are meeting their international obligations. Likewise, these processes in turn permit other parties to monitor the United States’ anti-corruption laws and enforcement to ensure that such enforcement and legal frameworks are consistent with the United States’ treaty obligations.30 U.S. officials regularly address the subject of corruption with our foreign counterparts to raise awareness of the importance of fighting corruption and urge stronger enforcement of anti-corruption laws and policies. As a result of the recognition by other countries of the need to combat corruption, as well as the significant efforts by organizations such as the OECD Working Group on Bribery, a number of countries have implemented foreign bribery laws and significantly increased their enforcement efforts. For example, in December 2016, France enacted its Sapin II law, which significantly strengthened its existing foreign bribery legislation and enforcement regime.

OECD Working Group on Bribery and the Anti-Bribery Convention

The OECD was founded in 1961 to stimulate economic progress and world trade. As noted, the Anti-Bribery Convention requires its parties to criminalize the bribery of foreign public officials in international business transactions.31 As of June 30, 2020, there were 44 parties to the Anti- Bribery Convention. All of these parties are also members of the OECD Working Group on Bribery (Working Group).

The Working Group is responsible for monitoring the implementation of the Anti-Bribery Convention, the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, and related instruments. Its members meet quarterly to review and monitor implementation of the Anti-Bribery Convention by member states around the world. Each party undergoes periodic peer review.32 This peer review monitoring system is conducted in four phases. The Phase 1 review includes an in-depth assessment of each country’s domestic laws implementing the Convention. The Phase 2 review examines the effectiveness of each country’s laws and anti-bribery efforts. The final phases are permanent cycles of peer review (the first cycle of which is referred to as the Phase 3 review and the next is the Phase 4 review) that evaluate a country’s enforcement actions and results, as well as the country’s efforts to address weaknesses identified during the prior review.33 All of the monitoring reports for the parties to the Convention can be found on the OECD website and can be a useful resource about the foreign bribery laws of the OECD Working Group member countries.34

The reports and appendices for all of the phases of reviews for the United States can be found on DOJ’s and SEC’s websites.35 In its Phase 3 review of the United States, which was completed in October 2010, the Working Group commended U.S. efforts to fight transnational bribery and highlighted a number of best practices developed by the United States. The report also noted areas where the United States’ anti-bribery efforts could be improved, including consolidating publicly available information on the application of the FCPA and enhancing awareness among small and medium-sized companies about the prevention and detection of foreign bribery. Initial publication of this guide was, in part, a response to these Phase 3 recommendations and is intended to help businesses and individuals better understand the FCPA.36

U.N. Convention Against Corruption

The United States is a state party to the United Nations Convention Against Corruption (UNCAC), which was adopted by the U.N. General Assembly on October 31, 2003, and entered into force on December 14, 2005.37 The United States ratified the UNCAC on October 30, 2006. The UNCAC requires parties to criminalize a wide range of corrupt acts, including domestic and foreign bribery and related offenses such as money laundering and obstruction of justice. The UNCAC also establishes guidelines for the creation of anti-corruption bodies, codes of conduct for public officials, transparent and objective systems of procurement, and enhanced accounting and auditing standards for the private sector. A peer review mechanism assesses the implementation of the UNCAC by parties to the Convention, with a focus in the first round on criminalization and law enforcement as well as international legal cooperation.38 The United States has been reviewed under the Pilot Review Programme, the report of which is available on DOJ’s website. As of June 30, 2020, 187 countries were parties to the UNCAC.39

Other Anti-Corruption Conventions

The Inter-American Convention Against Corruption (IACAC) was the first international anti-corruption convention, adopted in March 1996 in Caracas, Venezuela, by members of the Organization of American States.40 The IACAC requires parties (of which the United States is one) to criminalize both foreign and domestic bribery. A body known as the Mechanism for Follow-Up on the Implementation of the Inter- American Convention Against Corruption (MESICIC) monitors parties’ compliance with the IACAC. As of June 30, 2020, 33 countries were parties to MESICIC.

The Council of Europe established the Group of States Against Corruption (GRECO) in 1999 to monitor countries’ compliance with the Council of Europe’s anti-corruption standards, including the Council of Europe’s Criminal Law Convention on Corruption.41 These standards include prohibitions on the solicitation and receipt of bribes, as well as foreign bribery. As of June 30, 2020, GRECO member states, which need not be members of the Council of Europe, include 49 European countries and the United States.42

The United States has been reviewed under both MESICIC and GRECO, and the reports generated by those reviews are available on DOJ’s website.

Next – Chapter 2 The FCPA: Anti-Bribery Provisions



The Second Edition of the guide was signed in July 2020 by Brian Benczkowski on behalf of the DOJ, and Stephanie Avakian & Steven Peikin for the SEC. Since then, Kevin Polite has taken on the role of Assistant Attorney General of the Criminal Division at the DOJ. Steven Peikin is now in private practice and Stephanie Avakian has announced her intention to conclude her tenure at the SEC.

Enforcement Activity

Since the release of the Second Edition there have been a number of FCPA enforcement actions, including:

  • KT Corporation — Company agreed to pay more than $6.3 million to settle charges that it violated the books and records and internal accounting controls provisions of the FCPA in connection with improper payments for the benefit of government officials in Korea and Vietnam. (2/17/2022)
  • Credit Suisse — The firm agreed to pay nearly $100 million in disgorgement, PJI and penalty to settle charges that it violated the anti-fraud provisions of the federal securities laws and the books and records and internal accounting controls provisions of the FCPA in connection with its role in three financial transactions on behalf of Mozambican state-owned entities. See related action VTB Capital. (10/19/21)
  • WPP plc – Company agreed to pay more than $19 million to settle charges that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA in connection with violations at its subsidiaries in India, Brazil, China, and Peru. (9/24/21)
  • Amec Foster Wheeler Ltd. — The company agreed to pay $22.7 million to settle SEC charges that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA in connection with a scheme to obtain an oil and gas engineering and design contract from the Brazilian state-owned oil company, Petroleo Brasileiro S.A. (6/25/21)
  • Asante Berko – SEC charged a former executive of a financial services company with orchestrating a bribery scheme to help a client to win a government contract to build and operate an electrical power plant in the Republic of Ghana. See Litigation Release for Final Judgment. (6/23/21)
  • Deutsche Bank AG – The firm agreed to pay more than $43 million in disgorgement and PJI to settle charges that it violated the books and records and internal accounting controls provisions of the FCPA in connection with improper payments to intermediaries in China, the UAE, Italy and Saudi Arabia. (1/8/21)
  • Goldman Sachs Group, Inc. – The firm agreed to pay more than more than $1 billion to settle SEC charges that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA in connection with the 1Malaysia Development Berhad (1MDB) bribe scheme. See related action against Tim Leissner (10/22/20).
  • J&F Investimentos, S.A. – Brazilian nationals Joesley Batista and Wesley Batista and their companies J&F Investimentos S.A. and JBS S.A., a global meat and protein producer, have agreed to pay nearly $27 million to resolve charges that they caused Pilgrim’s Pride’s violations of the books and records and internal accounting controls provisions of the FCPA. The Batistas also agreed to each pay a $550,000 civil penalty. The parties also agreed to a three-year self-reporting undertaking. (10/14/20)
  • Herbalife Nutrition, Ltd. – The Los Angeles-based direct selling company agreed to pay more than $67 million to resolve charges that it violated the books and records and internal accounting controls provisions of the FCPA arising out of a bribery scheme orchestrated by its China subsidiary. See related action against Jerry Li. (9/28/20)
  • World Acceptance Corp. (“WAC”) – Without admitting or denying the SEC’s findings, WAC settled to anti-bribery, books and records, and internal accounting controls provisions of the FCPA and paid over $20 million to resolve charges arising out of a bribery scheme orchestrated by its former Mexican subsidiary. (8/6/2020)
  • Alexion Pharmaceuticals – Boston-based pharmaceutical company Alexion Pharmaceuticals Inc. agreed to pay more than $21 million to resolve charges that it violated the books and records and internal accounting controls provisions of the FCPA. (7/2/20)
  • Novartis AG – Global pharmaceutical and healthcare company and its former Alcon subsidiary agreed to pay over $340 million to resolve SEC and DOJ charges arising out of conduct in multiple jurisdictions. (6/25/20)

Court Rulings

Since the Second Edition, there have also been a number of important FCPA cases decided:

  • In Liu v. SEC the Court held that the disgorgement remedy available to the SEC under the FCPA must be directly tied to ill-gotten gains, as it is supposed to benefit victims. While the Liu decision was mentioned once in the guide, there was no substantive analysis of its effects on enforcement, and is also subject to legislative developments (see below).
  • In United States v. Ho, the US Court of Appeals for the Second Circuit, held that: (i) an individual can be charged under both the 78dd-2 and 78dd-3 provisions of the FCPA, i.e., that these provisions are not necessarily mutually exclusive; (ii) a violation of 78dd-3 can be specified unlawful activity in connection with a money laundering charge; and (iii) that money transferred into and out of a correspondent account in the United States was sufficient to confer jurisdiction under the relevant money laundering statute even where “the United States is neither the point of origination nor the end destination for the money, but is instead just an intermediate stop along the way.”

Legislative Changes

On January 1, 2021, Congress passed the National Defense Authorization Act (“NDAA”). The NDAA expands the SEC’s statutory authority to seek disgorgement. Section 6501 of the NDAA explicitly authorizes the SEC to seek disgorgement in cases filed in federal court, eliminating any residual doubt after Liu. It also extends the statute of limitations from five years to ten years for SEC enforcement actions based on scienter-based claims, a change which applies to both pending cases and enforcement actions initiated after the passage of the NDAA.


  1. H. R. Rep. No. 95-640, at 4-5 (1977) [hereinafter H.R. Rep. No. 95-640], available at houseprt-95-640.pdf.
  2. S. Rep. No. 95-114, at 4 (1977) [hereinafter S. Rep. No. 95-114], available at
  3. Id.; H.R. Rep. No. 95-640, at 4-5. The House Report made clear Congress’ concerns: “The payment of bribes to influence the acts or decisions of foreign officials, foreign political parties or candidates for foreign political office is unethical. It is counter to the moral expectations and values of the American public. But not only is it unethical, it is bad business as well. It erodes public confidence in the integrity of the free market system. It short-circuits the marketplace by directing business to those companies too inefficient to compete in terms of price, quality or service, or too lazy to engage in honest salesmanship, or too intent upon unloading marginal products. In short, it rewards corruption instead of efficiency and puts pressure on ethical enterprises to lower their standards or risk losing business.” Id.
  4. See, e.g., U.S. Agency for Int’l Dev., USAID Anticorruption Strategy 5-6 (2005), available at The growing recognition that corruption poses a severe threat to domestic and international security has galvanized efforts to combat it in the United States and abroad. See, e.g., Int’l Anti-Corruption and Good Governance Act of 2000, Pub. L. No. 106-309, § 202, 114 Stat. 1090 (codified as amended at 22 U.S.C. §§ 2151-2152 (2000)) (noting that “[w]idespread corruption endangers the stability and security of societies, undermines democracy, and jeopardizes the social, political, and economic development of a society. . . . [and that] [c]orruption facilitates criminal activities, such as money laundering, hinders economic development, inflates the costs of doing business, and undermines the legitimacy of the government and public trust”).
  5. See Maryse Tremblay & Camille Karbassi, Corruption and Human Trafficking 4 (Transparency Int’l, Working Paper No. 3, 2011), available at ocs/ti-workingpaperhumantrafficking28 jun_2011mode=window&backgroundColor=%23222222; U.S. Agency for Int’l Dev., Foreign Aid in the National Interest 40 (2002), available at (“No problem does more to alienate citizens from their political leaders and institutions, and to undermine political stability and economic development, than endemic corruption among the government, political party leaders, judges, and bureaucrats. The more endemic the corruption is, the more likely it is to be accompanied by other serious deficiencies in the rule of law: smuggling, drug trafficking, criminal violence, human rights abuses, and personalization of power.”).
  6. President George W. Bush observed in 2006 that “the culture of corruption has undercut development and good governance and . . . impedes our efforts to promote freedom and democracy, end poverty, and combat international crime and terrorism.” President’s Statement on Kleptocracy, 2 Pub. Papers 1504 (Aug. 10, 2006), available at The administrations of former President George W. Bush and former President Barack Obama both recognized the threats posed to security and stability by corruption. For instance, in issuing a proclamation restricting the entry of certain corrupt foreign public officials, former President George W. Bush recognized “the serious negative effects that corruption of public institutions has on the United States’ efforts to promote security and to strengthen democratic institutions and free market systems. . .” Proclamation No. 7750, 69 Fed. Reg. 2287 (Jan. 14, 2004). Similarly, former President Barack Obama’s National Security Strategy paper, released in May 2010, expressed the administration’s efforts and commitment to promote the recognition that “pervasive corruption is a violation of basic human rights and a severe impediment to development and global security.” The White House, National Security Strategy 38 (2010), available at
  7. See, e.g., Int’l Chamber of Commerce, et al., Clean Business Is Good Business: The Business Case Against Corruption (2008), available at https://d306pr3pise04h. is_good_business.pdf; World Health Org., Reinforcing the Focus on Anti-corruption, Transparency and Accountability in National Health Policies, Strategies and Plans (2019), available at le/10665/326229/9789241515689-eng.pdf?ua=1.
  8. See, e.g., The Corruption Eruption, Economist (Apr. 29, 2010), available at (“The hidden costs of corruption are almost always much higher than companies imagine. Corruption inevitably begets ever more corruption: bribe-takers keep returning to the trough and bribe-givers open themselves up to blackmail.”); Daniel Kaufmann and Shang-Jin Wei, Does “Grease Money” Speed Up the Wheels of Commerce? 2 (Nat’l Bureau of Econ. Research, Working Paper No. 7093, 1999), available at (“Contrary to the ‘efficient grease’ theory, we find that firms that pay more bribes are also likely to spend more, not less, management time with bureaucrats negotiating regulations, and face higher, not lower, cost of capital.”).
  9. For example, in a number of recent enforcement actions, the same employees who were directing or controlling the bribe payments were also enriching themselves at the expense of the company. See, e.g., Criminal Information, United States v. Cyrus Allen Ahsani, et al., No. 19-cr-147 (S.D. Tex. Mar. 4, 2019), ECF No. 1 [hereinafter United States v. Ahsani] (paying kickbacks to executives who were involved in bribe payments), available at; Criminal Information, United States v. Colin Steven, No. 17-cr-788 (S.D.N.Y. Dec. 21, 2017), ECF No. 2 [hereinafter United States v. Steven] (receiving kickbacks related to certain corrupt payments made by Embraer, S.A.), available at; Criminal Information, United States v. Robert Zubiate, No. 17-cr-591 (S.D. Tex. Oct. 6, 2017), ECF No. 1 [hereinafter United States v. Zubiate] (receiving kickbacks related to certain corrupt payments made by SBM Offshore, N.V. in Brazil), available at criminal-fraud/file/1017281/download; Complaint, SEC v. Peterson, No. 12-cv-2033 (E.D.N.Y. 2012), ECF No. 1, available at pr2012-78.pdf; Criminal Information, United States v. Peterson, No. 12-cr-224 (E.D.N.Y. 2012), ECF No. 7 [hereinafter United States v. Peterson], available at default/files/criminal-fraud/legacy/2012/04/26/petersong- information.pdf; Plea Agreement, United States v. Stanley, No. 08-cr-597 (S.D. Tex. 2008), ECF No. 9 [hereinafter United States v. Stanley], available at default/files/criminal-fraud/legacy/2012/03/19/09-03- 08stanley-plea-agree.pdf; Plea Agreement, United States v. Sapsizian, No. 06-cr-20797 (S.D. Fla. 2007), ECF No. 42 [hereinafter United States v. Sapsizian], available at https:// legacy/2011/02/16/06-06-07sapsizian-plea.pdf.
  10. See, e.g., Criminal Information, United States v. Société Générale S.A., No. 18-cr-253 (E.D.N.Y. May 18, 2018), ECF No. 4 [hereinafter United States v. Société Générale], available at download; Complaint, SEC v. Tyco Int’l Ltd., 06-cv-2942 (S.D.N.Y. 2006), ECF No. 1 [hereinafter SEC v. Tyco Int’l], available at pdf; Complaint, SEC v. Willbros Group, Inc., No. 08-cv-1494 (S.D. Tex. 2008), ECF No. 1 [hereinafter SEC v. Willbros], available at pdf.
  11. See United States v. Ahsani, supra note 9 (engaging in bid-rigging); Plea Agreement, United States v. Bridgestone Corp., No. 11-cr-651 (S.D. Tex. 2011), ECF No. 21, available at legacy/2011/10/18/10-05-11bridgestone-plea.pdf.
  12. See, S. Rep. No. 95-114, at 6; H.R. Rep. No. 95-640, at 4; see also A. Carl Kotchian, The Payoff: Lockheed’s 70-Day Mission to Tokyo, Saturday Rev., Jul. 9, 1977, at 7.
  13. U.S. Sec. and Exchange Comm., Report of the Securities and Exchange Commission on Questionable and Illegal Corporate Payments and Practices 2-3 (1976).
  14. See H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95-114, at 3-4.
  15. H.R. Rep. No. 95-640, at 4-5; S. Rep. No. 95- 114, at 4. The Senate Report observed, for instance, that “[m]anagements which resort to corporate bribery and the falsification of records to enhance their business reveal a lack of confidence about themselves,” while citing the Secretary of the Treasury’s testimony that “‘[p]aying bribes—apart from being morally repugnant and illegal in most countries—is simply not necessary for the successful conduct of business here or overseas.’” Id.
  16. See S. Rep. No. 100-85, at 46 (1987) (recounting FCPA’s historical background and explaining that “a strong antibribery statute could help U.S. corporations resist corrupt demands ”) [hereinafter S. Rep. No. 100-85].
  17. S. Rep. No. 95-114, at 7.
  18. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100- 418, § 5003, 102 Stat. 1107, 1415-25 (1988); see also H.R. Rep. No. 100-576, at 916-24 (1988) (discussing FCPA amendments, including changes to standard of liability for acts of third parties) [hereinafter H.R. Rep. No. 100-576].
  19. See Omnibus Trade and Competitiveness Act of 1988, § 5003(d). The amended statute included the following directive: “It is the sense of the Congress that the President should pursue the negotiation of an international agreement, among the members of the Organization of Economic Cooperation and Development, to govern persons from those countries concerning acts prohibited with respect to issuers and domestic concerns by the amendments made by this section. Such international agreement should include a process by which problems and conflicts associated with such acts could be resolved.” Id.; see also S. Rep. No. 105-277, at 2 (1998) (describing efforts by Executive Branch to encourage U.S. trading partners to enact legislation similar to FCPA following 1988 amendments) [hereinafter S. Rep. No. 105-277].
  20. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions art. 1.1, Dec. 18, 1997, 37 I.L.M. 1 [hereinafter Anti-Bribery Convention]. The Anti-Bribery Convention requires member countries to make it a criminal offense “for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.” The Convention and its commentaries also call on all parties (a) to ensure that aiding and abetting and authorization of an act of bribery are criminal offenses, (b) to assert territorial jurisdiction “broadly so that an extensive physical connection to the bribery act is not required,” and (c) to assert nationality jurisdiction consistent with the general principles and conditions of each party’s legal system. Id. at art. 1.2, cmts. 25, 26.
  21. See International Anti-Bribery and Fair Competition Act of 1998, Pub. L. 105-366, 112 Stat. 3302 (1998); see also S. Rep. No. 105-277, at 2-3 (describing amendments to “the FCPA to conform it to the requirements of and to implement the OECD Convention”).
  22. There is no private right of action under the FCPA. See, e.g., Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028-29 (6th Cir. 1990); McLean v. Int’l Harvester Co., 817 F.2d 1214, 1219 (5th Cir. 1987).
  23. U.S. Dept. of Justice, Justice Manual § 9-47.110 (2008) [hereinafter JM], available at jm/justice-manual.