Foreign Corrupt Practices Act and White Collar Defense

Trusted Advisors: TransPerfect FCPA Practice Group

TransPerfect Legal is a recognized leader in supporting white collar defense investigations, enforcement proceedings, and litigation, including under the U.S. Foreign Corrupt Practices Act (FCPA), UK Bribery Act (UKBA), and similar anti-bribery laws.

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FCPA Service Ecosystem

The FCPA Practice Group offers unparalleled value across the lifecycle of an FCPA investigation and compliance program.

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Safeguard Your Enterprise with FCPA Guidance and Protection

The TransPerfect Legal FCPA Practice Group is uniquely positioned to reduce the time and burden of FCPA investigations and compliance programs by over 40% due to the following reasons.

1. Global Subject Matter Experts

From seasoned government investigators to former “big law” white collar defense attorneys, our experts in white collar defense and FCPA bring extensive experience to support your needs across jurisdictions and white collar practice areas. Backed by a global team of computer forensics experts, eDiscovery technologists, and managed review specialists, TransPerfect Legal stands ready to enhance your legal team with subject matter expertise seamlessly integrated as an extension of your personnel.

2. Cutting-Edge Investigative Technology

TransPerfect Legal’s white collar professionals leverage a robust technology stack to provide you with an efficient data investigation that yields accurate results. Our investigative technology includes an array of data processing, searching, analytics, and artificial intelligence tools so we can offer the breadth and depth to support our clients’ global investigations. Because each tool is only as useful as the person “driving” it, TransPerfect’s expert technologists are ever-ready to help identify, design, and execute the most streamlined and defensible workflows on a matter-by-matter basis.

TransPerfect’s Legal Technology Infrastructure

We can collect and analyze data remotely at a client location anywhere in the world, on-site, or in one of our digital forensic labs: Amsterdam, Atlanta, Boston, Chicago, Dallas, Dubai, Hong Kong, London, Los Angeles, Miami, New York, Newport Beach, Philadelphia, San Francisco, Sydney, Toronto, Washington, D.C.

In total, TransPerfect Legal has supported over 300 witness interviews, both in person and remotely, including across the Middle East, Europe, and South America. Further, TransPerfect has translated over 150,000 words in seven languages from the Americas, Europe, the Middle East, and Asia.

3. Multi-Language Support

In navigating white collar matters, especially those falling under the purview of the FCPA, Bribery Act, or similar legislation, the involvement of custodians and data sources from a variety of jurisdictions communicating in multiple languages is common.

As the foremost provider of language services in the legal sector, TransPerfect Legal delivers unparalleled value, offering a comprehensive suite of services tailored for multi-language data challenges:

Foreign Corrupt Practices Act FAQs

What does FCPA mean?

The FCPA, or Foreign Corrupt Practices Act, is a pivotal, U.S. anti-corruption law with global implications. Enacted in 1977, the federal law prohibits the payment of bribes to foreign officials to assist in obtaining or retaining business.

The FCPA aims to promote transparency, accountability, and fair business practices on an international level. Companies and individuals engaged in global business activities must adhere to FCPA regulations to avoid legal consequences related to bribery and corruption.

What are the key elements of an FCPA violation?

The Foreign Corrupt Practices Act (FCPA) consists of two main provisions: the anti-bribery provisions and the accounting provisions.

1. Anti-Bribery Provisions: The anti-bribery provisions of the FCPA prohibit the payment or offering of bribes to foreign officials to obtain or retain business. The key elements of the anti-bribery provisions include:
   • Payment or Offer: Engaging in the act of giving, promising to give, or authorizing the giving of money, gifts, or anything of direct or indirect value.
   • To a Foreign Official: Extends to individuals working for foreign governments, foreign government agencies, international organizations, or any other foreign public officials.
   • Corrupt Intent: The payment must be made with the corrupt intent to influence the recipient's actions or decisions in a way that will assist the payer in securing an improper advantage to obtain or retain business.
2. Accounting Provisions: The accounting provisions of the FCPA require accurate record-keeping and internal controls by companies subject to the Act. The key elements of the accounting provisions include:
   • Books and Records: Companies must maintain accurate books, records, and accounts that reflect their transactions and disposition of assets.
   • Internal Controls: Companies must establish and maintain internal accounting controls sufficient to ensure the accountability of their assets and to prevent the circumvention of anti-bribery provisions.

Who does the FCPA apply to?

The Foreign Corrupt Practices Act can apply to several entities and individuals, including:

• U.S. Companies and Issuers: FCPA applies to all U.S. companies, whether domestic or international, as well as foreign companies that are listed on U.S. stock exchanges or are required to file periodic reports with the U.S. Securities and Exchange Commission (SEC).
• U.S. Citizens and Residents: Individuals who are U.S. citizens, nationals, or residents, as well as certain non-U.S. individuals acting on behalf of U.S. companies, can be held liable under the FCPA for engaging in corrupt practices abroad.
• Foreign Companies and Individuals: The FCPA also has jurisdiction over foreign companies and individuals that engage in corrupt practices while in the territory of the United States or use U.S. means of interstate commerce in furtherance of a corrupt payment.
• Officers, Directors, Employees, and Agents: Officers, directors, employees, and agents of covered entities can be held personally liable for violations of the FCPA if they are found to have participated in or authorized corrupt activities.
• Third-Party Intermediaries: Companies can be held responsible for the actions of third-party agents, consultants, representatives, distributors, or joint venture partners acting on their behalf, even if those entities are not directly owned or controlled by the company.

Does the FCPA apply outside the U.S.?

The Foreign Corrupt Practices Act has extraterritorial reach, meaning it applies outside the United States. Enforcement of the FCPA has been applied globally, and many cases involve activities that occur outside the United States. Companies operating internationally should be aware of the FCPA's reach and take steps to ensure compliance with its provisions to avoid legal consequences related to bribery and corruption.

Additionally, other jurisdictions have similar anti-bribery laws. The UK Bribery Act is the United Kingdom's comprehensive anti-bribery legislation. Its jurisdiction covers activities within the UK and extends to companies and individuals operating there. The UKBA includes a general bribery offense applicable to both public and private sectors, as well as a corporate offense that holds companies accountable for failing to prevent bribery by associated persons.

The international landscape features additional anti-bribery laws, such as the OECD Anti-Bribery Convention, which establishes standards for criminalizing bribery of foreign public officials. This complex web of regulations underscores the importance for multinational companies to adopt robust compliance programs, staying abreast of evolving legal frameworks to mitigate legal risks and uphold ethical business practices on a global scale.

How do I comply with FCPA?

Compliance with the Foreign Corrupt Practices Act requires a comprehensive and proactive approach, beginning with a risk assessment. Conducting a risk assessment will help you identify potential areas of exposure in your business operations, so you can fill any gaps with clear and comprehensive anti-bribery policies and procedures that outline your company’s commitment to FCPA compliance.

It’s important to regularly educate employees, executives, and relevant third parties about the FCPA and your organization's policies, emphasizing the risks and consequences of non-compliance. Additionally, you should prioritize due diligence when establishing relationships with business partners and third parties, ensuring they align with FCPA standards. Communicate anti-corruption expectations to these third parties and include anti-corruption clauses in contracts.

Implement ongoing monitoring and auditing processes, including internal controls, to detect and prevent potential violations, and establish confidential reporting mechanisms to encourage employees to report potential concerns and violations. If a concern arises, promptly investigate and address the reported issue, maintain accurate records, and implement robust accounting controls. Seek legal counsel to ensure that your compliance programs align with current legal standards and best practices.

Finally, view FCPA compliance as an ongoing process that evolves with your business, regularly reassessing and updating your program to adapt to changes in regulations and international standards.