• In 2004, the DOJ collected about $11 million in criminal fines. In 2009 and 2010 combined, the DOJ collected nearly $2 billion in criminal fines.

  • The FBI has trained a special investigative unit for FCPA violations.

  • FCPA enforcement officials currently have more than 150 criminal and 80 civil investigations underway.

  • New FCPA whistleblower provisions increase risks.

  • In 2010, 52 individual businesspeople were indicted, sentenced, or convicted and are awaiting sentencing for FCPA violations.

  • Enforcement officials resolved 6 FCPA enforcement actions in 2002. In 2010, they resolved 71.

  • In 2010 alone, five FCPA settlements exceeded $100 million.

  • The amount of FCPA penalties tripled between 2009 and 2010.

  • Individuals are facing significant FCPA fines and jail time for authorizing improper payments.

  • FCPA actions are increasingly brought against small and medium-sized companies as well as high-profile multinational corporations.


Who is subject?

Anti-Bribery Provisions:

The FCPA’s anti-bribery provisions apply to issuers of U.S. securities and “domestic concerns.” The term “domestic concern” includes both companies based in the United States and U.S. citizens or legal permanent residents acting anywhere in the world. Foreign nationals are also subject if they have sufficient jurisdictional connection to the United States, a requirement that has been applied broadly by enforcement officials. For example, the territorial nexus will be satisfied if foreign nationals use the U.S. mail system or a U.S. e-mail server in furtherance of a corrupt act. The anti-bribery provisions apply to officers, directors, employees, agents, and stockholders of the above entities no matter their nationality or residency. Enforcement officials may also hold U.S. companies liable for the actions of their foreign subsidiaries.

Books and Records Provisions:

The accounting and recordkeeping provisions apply to all “issuers,” defined to include any company, U.S. or foreign, that is registered on a U.S. securities exchange and is required to file reports with the SEC. Unlike the anti-bribery provisions, the accounting and recordkeeping provisions do not require a nexus to interstate commerce. The FCPA also requires issuers to ensure that all of their majority-owned affiliates comply with the accounting requirements and to use best efforts in good faith to ensure that their minority-owned affiliates also comply. Individuals who cause the falsification of the issuer’s books and records or fail to implement internal controls may also be liable.

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