Individuals may be criminally and civilly liable under both the anti-bribery and accounting provisions of the FCPA for direct violations, for conspiring to violate the FCPA, and for aiding and abetting a violation by another.
The anti-bribery provisions, but not the accounting provisions, distinguish between US and non-US persons. The FCPA’s anti-bribery provisions apply to:
- US citizens, nationals, and residents, regardless of whether they violate the FCPA domestically or abroad;1
- agents, employees, officers, directors, and shareholders of issuers and domestic concerns, regardless of whether they violate the FCPA domestically or abroad;2 and
- foreign nationals not within the above-mentioned groups who take any act in furtherance of prohibited bribery while physically present in the US.3 For more on the extraterritorial application of the FCPA, see here.
The FCPA does not apply to foreign officials who receive improper payments, though they may be charged for associated crimes, such as money laundering and tax evasion.4
US enforcement authorities are increasingly focused on holding individuals responsible for FCPA violations.5
1 15 USC § 78dd-2(i); 15 USC § 78dd-3(a).
2 15 USC § 78dd-1(a); 15 USC § 78dd-2(a).
3 15 USC § 78dd-3(a).
4 See United States v. Castle, 925 F.2d 831, 831, 834-35 (5th Cir. 1991) (holding that “foreign officials may not be prosecuted under 18 USC § 371 for conspiring to violate the FCPA” and that “Congress had absolutely no intention of prosecuting the foreign officials involved” for bribery under the FCPA).
5 Mem. from Sally Quillian Yates, Deputy Att’y Gen., to Heads of Dep’t Components U.S. Attorneys, Individual Accountability for Corporate Wrongdoing (Sept. 9, 2015) (on file with DOJ), available here.