Because the FCPA prohibits corrupt payments to foreign officials, many enforcement actions involve foreign companies, businesses operating abroad, and foreign nationals.
Non-US entities may be liable under the FCPA if they are issuers or domestic concerns or officers, directors, employees, agents or stockholders of issuers or domestic concerns, whether they violate the FCPA domestically or abroad, so long as a means or instrumentality of interstate commerce is used in the commission of the offense.1 According to enforcement authorities, “agents” may include foreign subsidiaries of issuers and domestic concerns.
Non-US entities and individuals may also be liable for violations if they aid and abet or conspire to violate the FCPA while present in the US.2
Separately, US companies may be liable for FCPA violations by foreign subsidiaries under agency and alter ego theories of liability.3
1 15 USC §§ 78dd-1(a) 78dd-2(a), 78dd-2(h)(1).
2 18 USC § 2(a) (criminal aiding and abetting); 15 USC § 78t(e) (civil aiding and abetting); 18 USC § 871 (conspiracy).
3 See, e.g., N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 493 (1909); Phx. Can. Oil Co. v. Texaco, 842 F.2d 1466, 1476 (3d Cir. 1988).