The Foreign Corrupt Practices Act (“FCPA”) is a federal anti-bribery statute that applies to all U.S.-based companies, companies registered with the Securities and Exchange Commission, and U.S. citizens and residents that prohibits them from making corrupt payments to foreign officials in order to obtain or retain business or to obtain a competitive advantage. It also imposes accounting requirements upon certain U.S. companies to ensure that business transactions are accurately reflected in the companies’ books and records. The FCPA’s anti-bribery provisions are enforced by the Department of Justice, and the accounting provisions are enforced by the SEC.
The FCPA applies to virtually everyone in the United States, companies and individuals, who conduct business with a foreign official, including:
Issuers of securities. An issuer of securities is a company that either issued securities registered with the SEC or is required to file reports under section 15(d) of the Securities Exchange Act.
Domestic concerns. A domestic concern is a U.S. citizen, national or resident or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization or sole proprietorship that has its principal place of business in the United States, or is organized under the laws of a U.S. state.
Persons other than issuers or domestic concerns. Persons other than issuers or domestic concerns are natural persons other than a national of the U.S. or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization or sole proprietorship organized under the law of a foreign nation.
Companies are not insulated from FCPA liability if they use third-party intermediaries who bribe foreign officials.
Violations of the FCPA’s record-keeping and anti-bribery provisions can have harsh and expensive consequences for violators. The penalties range substantially, from a few thousand dollars to multimillion-dollar fines, and can include imprisonment and disgorgement. Notably, the FCPA prohibits domestic concerns from indemnifying their officers, directors, employees, agents or stockholders for a penalty imposed under the statute.
Every U.S. person or company who can conceivably encounter foreign officials in distribution chains, negotiations, or other business, charitable or commercial activity should consider putting into effect a compliance program carefully tailored to detect warning signs and identify areas of the business where potential violations are most likely to emerge.
“ The Smith Law Group is very responsive and goes the extra mile in getting work done timely. Gabriela and her associates are thorough and very organized. We have used them on several small projects relating to organizational documents and letters, but we were also very pleased with a recent sale transaction Gabriela advised us on that took a lot of review and updating in a compressed timeframe. We were successful in getting the sale documents in order, and highly recommend this firm for corporate work. ”
“ When we were looking for an international lawyer in the United States, we were told to reach out to Gabriela Smith. Gabriela very quickly and diligently started working on our international negotiation, and she achieved the outcome we wanted. Working with Gabriela turned a very difficult situation into a simpler deal. We recommend The Smith Law Group. / Cuando buscabamos un abogado internacional en Estados Unidos, nos recomendaron a Gabriela Smith. Gabriela inmediata y diligentemente represento a nuestra empresa en una negociacion internacional y logro el resultado que buscabamos en el caso. Trabajar con Gabriela hizo que una situacion dificil se vuelva en un problema menos para nosotros. We recommend The Smith Law Group. ”
“ We have been working with Gabriela for the last year and she has been really helpful in
helping us coordinate and organize the global structure of our companies and with international compliance matters by being proactive, responsive and fully dedicated. ”
“ I own a minority certified small business and was looking for an attorney who was not only an expert in their field, but also someone who genuinely cared about my small business. I found The Smith Law Group and was thrilled that they represent big and small companies and give them all the attention they deserve. The Smith Law Group helped my business with the first agreements that we signed for some big projects. We are thankful for their commitment to us and recommend their services. ”
“ The Smith Law Group no es un estudio jurídico más. Es un grupo de abogados dinámicos y que realmente entiende sobre negocios y las prioridades de los ejecutivos de empresas. Se hacen parte de la empresa y le ponen sumo interés a los asuntos y al éxito de sus clientes. The Smith Law Group es de confianza y es nuestro abogado de referencia desde hace muchos años.
The Smith Law Group is not just another law firm. It is a group of dynamic lawyers who have a profound understanding of business and of the priorities of seasoned executives. They become a part of the team and pay close attention to the matters they handle and care about client success. We trust The Smith Law Group and they have been our law firm for several years ”
“ Gabriela le suma a su know-how y comprensión de los negocios en Estados Unidos y América Latina, una clara vocación de servicio demostrada en su alta disponibilidad y profesionalismo. Por lo cual interactuar con ella se hace muy sencillo. Recomiendo a Gabriela Smith para asuntos cross-border de alta complejidad.
In addition to her know-how and the added value of understanding business in the United States and Latin America, Gabriela loves to serve her clients, which is something she has demonstrated in her ability to respond quickly and in her professionalism. Thus, it is very easy to interact with her. I recommend Gabriela Smith for complex cross-border matters. ”
“ The Smith Law Group was recommended to us by EHR industry leaders. Gabriela is our go-to attorney for complex software licensing deals and has successfully drafted and negotiated these deals. She is extremely responsive and diligent with our requests and has profound knowledge and understanding of our industry. She takes the time to understand what we need and really cares about our work, products, and services. ”
“ The Smith Law Group es uno de mis proveedores preferidos. La confianza de poder delegar tareas o consultas especificas en un outside counsel sabiendo que todo se va a ejecutar y resolver de manera eficiente, rápida y con un nivel de calidad first class, es fundamental para un área de legales interno. El nivel de personalización en la atención por parte de sus profesionales, y la agilidad para trabajar ajustado a los procesos internos de nuestra compañía ha sido un agregado de valor enorme para las operaciones del área que dirijo. Definitivamente un asset valioso
The Smith Law Group is one of my favorite providers. The trust generated in being able to delegate tasks or specific consultations to an outside counsel knowing that everything will get done and resolved in an efficient and timely manner, and with “first class,” is fundamental for an in-house attorney. The level of personalization in the performance of work by these attorneys, and the agility to work while also adjusting to our company’s internal process has been an added-value to the work I perform. The Smith Law Group is definitely a valuable asset. ”
“ CMP has worked with The Smith Law Group for five years on a variety of corporate legal issues – from acquisition and contract to Human Resource issues. We have always found them to be responsive, professional and provide pragmatic and insightful legal advice. Their legal services are the best I have experienced. I highly recommend The Smith Law Group. ”