Anti-Bribery Provisions

The FCPA’s anti-bribery provisions apply to entities and individuals that are (1) Issuers; (2) Domestic Concerns; or (3) other persons acting within the United States, including a non-US entity or national, who does any act in furtherance of a corrupt payment within the United States.1  For definitions of “Issuer” and “Domestic Concern,” see here.

Covered persons also include officers, directors, employees, and agents of issuers and domestic concerns, as well as stockholders acting on behalf of an issuer or domestic concern, regardless of nationality.

The definition of covered persons does not include foreign officials.  That is, the FCPA does not criminalize the receipt or acceptance of a bribe regardless of the theory of liability.  Foreign officials may be charged for related crimes, such as money laundering.

The government must also prove a jurisdictional nexus between the covered person and the US.  For more on this requirement, see here.

Accounting Provisions

The accounting provisions apply to issuers.  Subsidiaries of issuers and associated individuals may also be held liable for causing a violation of these provisions.

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

2 15 USC § 78m(b)(2).

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