fcpa-resource-guide

whether they utilize the U.S. mails or a means or instrumen-
tality of interstate commerce. 59 Thus, for example, a foreign
national who attends a meeting in the United States that fur-
thers a foreign bribery scheme may be subject to prosecution,
as may any co-conspirators, even if they did not themselves
attend the meeting. A foreign national or company may also
be liable under the FCPA if it aids and abets, conspires with,
or acts as an agent of an issuer or domestic concern, regardless
of whether the foreign national or company itself takes any
action in the United States. 60
In addition, under the “alternative jurisdiction” provision
of the FCPA enacted in 1998, U.S. companies or
persons may be subject to the anti-bribery provisions even
if they act outside the United States. 61 The 1998 amendments
to the FCPA expanded the jurisdictional coverage of
the Act by establishing an alternative basis for jurisdiction,
that is, jurisdiction based on the nationality principle. 62 In
particular, the 1998 amendments removed the requirement
that there be a use of interstate commerce (e.g., wire, email,
telephone call) for acts in furtherance of a corrupt payment
Hypothetical: FCPA Jurisdiction
chapter 2
The FCPA:
Anti-Bribery Provisions
to a foreign official by U.S. companies and persons occurring
wholly outside of the United States. 63
What Is Covered?—The Business
Purpose Test
The FCPA applies only to payments intended to
induce or influence a foreign official to use his or her position
“in order to assist … in obtaining or retaining business
for or with, or directing business to, any person.” 64 This
requirement is known as the “business purpose test” and is
broadly interpreted. 65
Not surprisingly, many enforcement actions involve
bribes to obtain or retain government contracts. 66 The
FCPA also prohibits bribes in the conduct of business or
Company A, a Delaware company with its principal place of business in New York, is a large energy company that
operates globally, including in a number of countries that have a high risk of corruption, such as Foreign Country Company
A’s shares are listed on a national U S stock exchange Company A enters into an agreement with a European company
(EuroCo) to submit a joint bid to the Oil Ministry to build a refinery in Foreign Country EuroCo is not an issuer
Executives of Company A and EuroCo meet in New York to discuss how to win the bid and decide to hire a purported
third-party consultant (Intermediary) and have him use part of his “commission” to bribe high-ranking officials within the
Oil Ministry Intermediary meets with executives at Company A and EuroCo in New York to finalize the scheme Eventually,
millions of dollars in bribes are funneled from the United States and Europe through Intermediary to high-ranking officials
at the Oil Ministry, and Company A and EuroCo win the contract A few years later, a front page article alleging that the
contract was procured through bribery appears in Foreign Country, and DOJ and SEC begin investigating whether the
FCPA was violated
Based on these facts, which entities fall within the FCPA’s jurisdiction?
All of the entities easily fall within the FCPA’s jurisdiction Company A is both an “issuer” and a “domestic concern”
under the FCPA, and Intermediary is an “agent” of Company A EuroCo and Intermediary are also subject to the FCPA’s
territorial jurisdiction provision based on their conduct while in the United States Moreover, even if EuroCo and Intermediary
had never taken any actions in the territory of the United States, they can still be subject to jurisdiction under a traditional
application of conspiracy law and may be subject to substantive FCPA charges under Pinkerton liability, namely, being liable
for the reasonably foreseeable substantive FCPA crimes committed by a co-conspirator in furtherance of the conspiracy
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