Speaking at a conference in November 2010, Assistant Attorney General Lanny Breuer announced that the U.S. government “is in a new era of FCPA enforcement; and we are here to stay.” That we are in a new era of Foreign Corrupt Practices Act enforcement is borne out by recent prosecutions against two classes of defendants — foreign entities operating wholly abroad and foreign officials — thought for years, since the FCPA’s enactment, to be beyond the reach of U.S. law enforcement.
The FCPA was enacted in 1977 in response to the discovery that certain U.S. companies had bribed foreign officials while doing business abroad. Initially, the bribery section of the act criminalized bribes or offers of bribes to foreign officials by issuers, foreign companies whose American depositary receipts were traded on the U.S. exchanges and domestic companies. It also covered their officers, directors, employees and agents. The act contained a books-and-records and internal-controls provision that applied only to issuers and foreign companies whose American depositary receipts were traded on the U.S. exchanges. Foreign companies not trading on the U.S. exchanges and their employees, officers, directors or agents were not covered.
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