The anti-bribery provisions prohibit US issuers, domestic concerns, and other US persons or persons acting in the US from offering, making, or authorizing a corrupt payment to a foreign official for purposes of influencing the official in the performance of his or her official duties, or otherwise securing an improper advantage in order to obtain or retain business.  The DOJ may pursue criminal anti-bribery charges against any covered person, and civil claims against any covered person that is not an issuer.  The SEC may pursue civil claims against issuers and associated persons only.

Elements of an Anti-Bribery Violation

  1. A person or entity subject to the FCPA (known as a covered person)
  2. made or authorized an offer, payment, or promise to pay or give anything of value
  3. to a foreign official or to a third party while knowing that all or part of the payment or thing of value will be given to a foreign official
  4. corruptly for the purpose of influencing the foreign official to do or refrain from doing an official act, securing an improper advantage, or inducing the foreign official to use his influence to affect an official act or decision
  5. in order to assist in obtaining or retaining business.1

Generally speaking, unless the actor is a US citizen, US national, or entity organized in the US, the government will be required to prove either that the actor made use of a means of interstate commerce in furtherance of the payment or took an act in furtherance of the payment while in the US, depending upon the particular anti-bribery provision (15 USC §§ 78dd-1, dd-2, or dd-3) the government is proceeding under.  This is known as the jurisdictional nexus.2  For more on this requirement, see here.


1 15 USC §§ 78dd-1(a), 78dd-2(a), 78dd-3(a).

2 15 USC §§ 78dd-1(a), 78dd-1(g), 78dd-2(a), 78dd-2(i), 78dd-3(a).

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