The Department of Justice and the Securities and Exchange Commission jointly issued a 120-page "resource guide" to the Foreign Corrupt Practices Act (FCPA) in November 2012 (the Guide). Although the Guide breaks little new ground, it confirms the DOJ’s and the SEC’s narrow view of several key defenses under the FCPA. This article examines the evolution of the "facilitating payments" (also known as "grease payments") exception, the Guide’s treatment of that exception, and the extent to which such payments remain permissible under the FCPA.
Origin of the Exception
Facilitating payments are typically small payments made to foreign government officials to expedite or secure a non-discretionary routine government action. The original version of the FCPA in 1977 created an exception for facilitating payments by excluding individuals "whose duties are essentially ministerial or clerical" from the statutory definition of "foreign official":
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