As highlighted here, once again the Foreign Extortion Prevention Act was introduced in Congress in an attempt to address the so-called “demand side” of bribery.
Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).
The Foreign Extortion Prevention Act is odd in several respects.
Bribery of a “foreign official” involves two parties (the supply side and the demand side).
From a U.S. law enforcement perspective, is a specific demand side prohibition even needed?
Over the past approximate decade, there have been numerous instances of the DOJ criminally charging “foreign officials” in connection with FCPA enforcement actions through use of – most frequently – money laundering laws.
If a specific foreign bribery demand side prohibition is needed, why have one statute – the FCPA found in Title 15 (Securities Laws) – address one prong of the conduct and another statute – the Foreign Extortion Prevention Act – proposed to be included in Title 18 (Criminal Code) – address the other prong?
Moreover, the Foreign Extortion Prevention Act contains meaningful differences in definitions and substantive standards compared to the FCPA.
For instance, the Foreign Extortion Prevention Act contains a more expansive definition of “foreign official” compared to the FCPA.
Like the FCPA, the Foreign Extortion Prevention Act’s definition of “foreign official” includes any “person acting in an official capacity for or on behalf of” a foreign government, department, agency, or instrumentality.
However, unlike the FCPA, the Foreign Extortion Prevention Act’s definition of “foreign official” also includes any “person acting in an unofficial capacity for or on behalf of a foreign government, department, agency, or instrumentality.”
What does “unofficial capacity” even mean?
In terms of the purpose of the thing of value offered or provided to a foreign official (or in the case of the Foreign Extortion Prevention Act demanded, sought, received, or accepted by a foreign official) the FCPA and the Foreign Extortion Prevention Act contain different standards.
Whereas the FCPA concerns seeking to influence any act or decision of a foreign official in their official capacity or seeking to induce a foreign official to do or omit to do any act in violation of the lawful duty of such official, the Foreign Extortion Prevention Act captures official acts and official duties.
Are these the same concepts or different?
Elsewhere, the Foreign Extortion Prevention Act seemingly contradicts itself.
For instance, the bill generally states that it is unlawful for a foreign official to corruptly demand anything of value “by making use of the mails or any means or instrumentality of interstate commerce.”
However, a later section of the bill states that an offense “shall be subject to extraterritorial federal jurisdiction.”
And then the last section of the Foreign Extortion Prevention Act states under the heading “Rule of Construction” that the act “shall not be construed as encompassing conduct that would violate [the FCPA’s anti-bribery provisions] whether pursuant to a theory of direct liability, conspiracy, complicity, or otherwise.”
What does this even mean?
Finally, what happens if what the foreign official is demanding, seeking, etc. qualifies as a facilitation payment under the FCPA’s anti-bribery provisions? The Foreign Extortion Prevention Act is silent on this relevant issue.
Moreover, what happens if what the foreign official is demanding, seeking, etc. qualifies as a reasonable and bona fide expenditure under the affirmative defense to the FCPA’s anti-bribery provisions? Again, the Foreign Extortion Prevention Act is silent on this relevant issue.
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