GLOBAL CORPORATE COMPLIANCE & COMPLIANCE RISK ASSESSMENT FALL 2014 FORDHAM LAW SCHOOL ©Basri 2014 1 Carole Basri What is the Foreign Corrupt Act (FCPA)? Enacted in 1977, the FCPA makes it a crime for an American Company to bribe or have others bribe on its behalf, foreign officials in an effort to win or retain business. 2 Carole Basri Under the FCPA, it’s a crime to do the following: Pay a bribe; Offer to make a bribe; or Authorize a payment to make a bribe. 3 Carole Basri The FCP covers payments to the following: Government employees; Political parties; Party officials; Candidates; Employees of state owned enterprises; or Employee of public international organizations, i.e. UN, IMF, World Bank. 4 Carole Basri What is “anything of value”? “Anything of value” could be “anything” given “corruptly” or for the “evil motive or purpose” of inducing “the recipient to misuse his/her official position in order to wrongfully” obtain business. 5 Carole Basri BUT Some Payments are OKAY! 6 Carole Basri Three Payment Exceptions under the FCPA: Grease payments; Reasonable and bona fide entertainment expenses; and Defense against prosecution payments. 7 Carole Basri Grease payments are allowed. Grease payments are to “expedite or …secure…a routine governmental action”. Examples of grease payments are payment for: Obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country; Processing governmental papers, such as visas and work orders; Providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit or goods across country; Providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or Actions of a similar nature. 8 Carole Basri Critical Point The payment must be for a “routine governmental action.” This would never cover payments to influence: “Any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party” 9 Carole Basri Reasonable and bona fide entertainment expenses are allowed. This includes “travel and lodging expenses” for foreign officials provided that the expenses are directly related to: The promotion, demonstration, or explanation of products or services; or The execution or performance of a contract with a foreign government of agency thereof. 10 Carole Basri Defense against prosecution payments are allowed. This only applies if the pay.