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What business owners should know about the FCPA -- II

In a previous post, we began discussing the U.S. Foreign Corrupt Practices Act or FCPA, a landmark law passed by Congress back in 1977 to combat international corruption via anti-bribery provisions. Specifically, we discussed not only what it is, but what it prohibits and to whom it applies.

We'll pick up this discussion in today's post, focusing more on the actors covered by the FCPA -- issuers, domestic concerns and other parties acting while in U.S. territory.

How does the FCPA define issuers?

A company is considered to be an issuer under the FCPA if it satisfies either of the following criteria:

  • It is listed on a national securities exchange in the U.S.
  • It is required to file reports with the Securities and Exchange Commission, and its stock is traded in the U.S. on the over-the-counter market

It's important to understand that everyone from directors and officers to agents, employees and even stockholders acting on behalf of the issuer may be prosecuted under the FCPA.

How does the FCPA define domestic concerns?

The FCPA defines a domestic concern as including any of the following:

  • A citizen, resident or national of the U.S.
  • A partnership, corporation, joint-stock company, association, sole proprietorship, unincorporated entity or business trust that is organized under state or federal law, or has its principal place of business in the U.S.

Similar to issuers, directors, officers, agents, employees and stockholders acting on behalf of the domestic concern are subject to prosecution under the FCPA.

How does the FCPA define other parties acting while in U.S. territory?

Over the last nearly 20 years, the FCPA's anti-bribery provisions have been extended to cover 1) foreign persons and 2) foreign non-issuer entities that engage in any act of "furtherance of a corrupt payment," either directly or indirectly, while in U.S. territory. This includes offers to make payments, actual payments, and promises to make payments or authorizations.

Once again, this includes issuers, directors, officers, agents, employees and stockholders.

We'll continue this discussion in future posts …

Remember to consider speaking with a skilled legal professional who can protect your freedom and your future as soon as possible if you've are under investigation or have been charged with violating the FCPA.

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