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Recent FCPA Prosecutions and the DOJ's Enforcement Plan Highlight Third-Party Intermediary Exposures
Companies doing business abroad often partner with third-party intermediaries ' such as consultants, agents, brokers or distributors ' to help navigate the challenges of language, local culture and bureaucracy, market structure, and compliance with local laws. While partnership abroad may be essential to business success, it creates significant risk under the Foreign Corrupt Practices Act (FCPA), the government's primary weapon against bribery of foreign officials. Recent FCPA prosecutions by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) illustrate the risks for companies that fail to adequately vet and monitor third-party intermediaries. As illustrated by the DOJ's April 2016 FCPA Enforcement Plan, efforts to prosecute FCPA violations are intensifying.
FCPA Basics
Under the FCPA's anti-bribery provisions, it is illegal for a domestic business or a publicly traded company, and its employees or agents, to offer or provide, either directly or indirectly, anything of value to a foreign government official for the purpose of obtaining or retaining business. Under the FCPA's accounting provisions, publicly traded companies must maintain accurate books and records with sufficient internal controls, and those that fail to do so are subject to civil and possibly criminal liability.
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