Government Officials under Anti-Corruption Laws

There are no specific federal legal restrictions on entertainment expenses provided to private parties, and the provision of non-lavish meals, entertainment, and gifts is unlikely to result in prosecution. Hospitality expenses provided in exchange for influence over government officials, on the other hand, may expose both the donor and receiver to criminal liability. 135 See, for example, United States v. Jean René Duperval, No. 1:09-cr-21010-JEM (SD Fl 2009) (Prosecution for money laundering by former director of international relations of Haiti Telco). New 18 U.S.C. 218 gives the president and, in accordance with the president`s rules, a chief executive the power to declare invalid and set aside any transaction or matter in respect of which there is a “final conviction” for violation of conflict of interest or corruption laws. This section also authorizes the recovery by the government of amounts spent or transferred on its behalf, in addition to penalties prescribed by law or contract. It is important that multinational corporations and their lawyers understand these privileges and doctrines in the context of everything from routine anti-corruption advice to defending a government investigation to properly conducting an internal investigation. [xi] There are a number of tools that U.S.

agencies can use alongside the FCPA to fight corruption. For example, while the FCPA does not prohibit commercial bribery (bribery involving someone other than a government official), travel law does. Specifically, the Travel Act prohibits the use of the U.S. Postal Service or interstate or foreign travel for certain crimes, including, but not limited to, bribery. Other U.S. laws on postal fraud and remittances, anti-money laundering laws, and tax laws can also establish bribery offenses if FCPA offenses are not committed. 18 Section 666 of the USC applies when the government or other entities receive federal program benefits in excess of $10,000. The bribery provisions of section 666(a)(1)(b) penalize an agent of the receiving corporation who corruptly requests, accepts or accepts something of value “that intends to be influenced or rewarded in connection with a business, transaction or series of transactions” of the recipient corporation valued at $5,000 or more.

Section 666(a)(2) covers the payer of corruption. However, such expenses may constitute “valuables” which, if given or received for the purpose of “influencing” an official act (corruption) or “for or because of” an official act (gift), may form the basis of criminal liability under section 201. Notably, the DOJ and SEC continued to encourage and reward corporate cooperation and self-disclosure in enforcement actions. Last year, the Department of Justice formalized the FCPA pilot program, an initiative to encourage companies to report alleged violations in order to obtain loans to mitigate harm or deny prosecution. In March 2019, DOJ further revised the FCPA enforcement policy to detect and disclose wrongdoing of successor companies discovered through pre- or post-acquisition due diligence, and to cooperate with follow-up investigations, providing a presumption of rejection.166 As Deputy Attorney General Brian Benczkowski explained earlier this year, The policy “avoids dissuasive takeover activities by law-abiding companies that might otherwise refrain from making profitable investments due to the risk of FCPA enforcement. 167 In addition, the revised corporate law enforcement policy allows companies requesting voluntary disclosure to report “all relevant facts concerning all persons materially involved or responsible for the breach,” rather than disclosing every employee involved in the corrupt conduct. 168 In relaxing this element of the Yates memo, then-Deputy Attorney General Rosenstein noted that the change was necessary given the need for policies that “operate in the real world with limited investigative resources.”169 In this context, since 2012, the SEC has awarded “approximately $381 million” to more than 60 whistleblowers. including the first whistleblower award for the successful application of the Foreign Exchange Act. 21F-4 (c). a provision encouraging employees to report misconduct within four months of the SEC`s internal reporting.170 In 2021, the Biden administration showed that anti-corruption efforts are a White House priority by identifying corruption as a threat to national security, suggesting the new administration could make significant changes to the regulatory enforcement landscape. Any company that has violated the FCPA`s anti-corruption provisions may also be barred from U.S.

government procurement. Even an indictment can result in a company not being allowed to sell goods or services to the U.S. government. The finding that a company has violated the FCPA can also have negative collateral consequences in other relationships with U.S. government agencies, including the ability to obtain U.S. export licenses and participate in programs sponsored by the Overseas Private Investment Corporation, the Export-Import Bank of the United States, the Agency for International Development, and other agencies. The law generally prohibits federal employees, including members and staff of the House of Representatives, from requesting or accepting anything of value, except as provided by the rules and regulations of their oversight ethics office.