BRIBES TAKERS & AND RECEIVERS, FEPA IS HERE FOR YOU.

This is not a surprise for me as a pracademic and or for most anti-corruption enthusiasts around the globe! The US Congress has just passed the Foreign Extortion Prevention Act, a law that makes it a crime for foreign government officials to demand or accept a bribe from a U.S. company. The bill is now waiting for President Biden’s signature to become law.

Just as you are familiar with the FCPA, get used to FEPA, as the legislation will now be forever abbreviated, it was folded into the larger?National Defense Authorization Act, which Congress enacted yesterday.

The?text of FEPA?is not long and is on point. It prohibits any foreign government official from soliciting a bribe from any person or company under U.S. jurisdiction. Here’s the relevant passage:?

“It shall be unlawful for any foreign official or person selected to be a foreign official to corruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, anything of value personally or for any other person or non-governmental entity, in or affecting interstate commerce, in return for:

1. being influenced in the performance of any official act;
2. being induced to do or omit to do any act in violation of the official duty of such official or person; or
3. conferring any improper advantage,

in connection with obtaining or retaining business for or with, or directing business to, any person.”

This language in the FEPA is similar to the one used in the Foreign Corrupt Practices Act (FCPA) because FEPA is a long-missing statutory counterpart to the FCPA (Foreign Corrupt Practices Act) and its ban on companies?offering?bribes. ?Now U.S. law enforcement can and will go after the foreign officials seeking those bribes, too for sure.

What FEPA Means for Compliance Professionals

For compliance professionals, it will take some time because, we all know that under the FCPA, the DOJ and its prosecutors take years to assemble and prosecute, therefore we can safely presume the same timing for FEPA cases. More importantly, one can safely anticipate that for FEPA prosecution, the US DOJ will be requesting and requiring companies wanting cooperation credits for wrongdoing under the FCPA, to provide information about these foreign receivers of bribes. The interesting question is whether an FCPA resolution (NPA/DPA) will be paused or advanced if a company is not providing evidence or information about the foreign receiver.

This is major progress in the sense that, the US DOJ will track you in Dubai, Geneva, Singapore, or anywhere in the world when you go spend bribery funds, fortunately, FEPA is not retroactive.