Which Companies Must Follow the Foreign Corrupt Practices Act?

A foreign official includes any person holding a legislative, administrative, or judicial office in a foreign country, as well as employees of foreign state-owned enterprises and officials of international organizations. The definition is broad and captures mid-level bureaucrats, customs officers, and representatives of state-controlled companies. Courts and the Department of Justice have held that even routine payments to facilitate lawful transactions can constitute violations if made to influence discretionary official conduct. Your compliance framework must account for this expansive definition when employees interact with foreign government entities or state-owned businesses.

The FCPA requires that the payment or offer be made corruptly and with intent to influence an official act or obtain a business advantage. Courts interpret corruptly to mean that the payor acted with knowledge that the payment was intended to induce improper official conduct, even if the payor did not know the payment was unlawful. Circumstantial evidence, including the timing of payments relative to contract awards, the use of intermediaries, unusual payment structures, and absence of legitimate business rationale, can support an inference of corrupt intent. Your company's internal communications, approval processes, and documentation practices become critical evidence in proving or defending against intent allegations.

When the DOJ initiates an investigation, your company will usually receive a document preservation notice or investigative subpoena directing retention of emails, financial records, travel documents, and communications with foreign agents or intermediaries. Failure to preserve documents can result in adverse inferences at trial and sanctions, so immediate implementation of a litigation hold across all custodians and systems is essential. The DOJ typically seeks records spanning several years before and after suspected violations. Your company should work with counsel to organize responsive materials, log privileged items, and prepare for follow-up investigative demands.

Common defenses include the reasonable precautions affirmative defense, which requires proof that the company had robust internal controls and the employee acted in violation of those controls, and challenges to the government's proof of corrupt intent or the official's status as a foreign official. Procedural challenges may target the sufficiency of evidence at the pleading stage and the government's burden to prove willfulness in criminal cases. Your counsel should evaluate whether the company's compliance program, though imperfect, was reasonably designed and whether individual actors deliberately circumvented controls.

An effective compliance program typically includes a written FCPA policy prohibiting corrupt payments and defining prohibited conduct with concrete examples; risk assessment and due diligence procedures for third-party agents, consultants, and joint venture partners; training for employees in high-risk roles; approval and documentation requirements for transactions involving foreign officials; periodic audits and monitoring of suspicious transactions; and a reporting mechanism for employees to raise concerns without retaliation. The program should address supply chain and contractor relationships, since liability can attach to payments made by agents or intermediaries acting on the company's behalf. Our Foreign Corrupt Practices Act practice area can help you assess gaps in your current program and implement enhancements aligned with DOJ and SEC expectations.

Upon discovery of a potential violation, the company should promptly engage outside counsel to conduct an investigation, preserve evidence, and assess reporting obligations to the DOJ and SEC. Early disclosure to regulators, coupled with evidence of a thorough internal investigation and remedial steps, can significantly influence enforcement discretion and penalty calculations. The company should document the investigation process, identify the scope of the violation, trace individual actor involvement, and implement corrective measures to prevent recurrence. Cooperation with regulators, including provision of witness statements and internal findings, is often viewed favorably in settlement negotiations.

Contemporaneous documentation of business rationale, approval chains, and payment terms for transactions involving foreign officials is critical to defending against FCPA allegations. Your company should maintain clear records showing that payments were for legitimate goods or services, that pricing was consistent with market rates, and that approvals followed established procedures. Email communications should reflect business judgment and avoid language suggesting corrupt intent. Regular audits and transaction reviews, with findings documented and acted upon, create a record of the company's commitment to compliance and its responsiveness to identified risks.