USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
an overview of the FCPA and the agencies’ approaches to key questions about the FCPA’s scope and application (eg, successor liability, parent–subsidiary relationships, and individual liability). In 2020, the DOJ issued the first significant revi - sion of the FCPA Resource Guide since it was first published in 2012. Some of the key updates include the FCPA’s extraterritorial application, the factors US courts may consider in deter - mining whether a non-US person is a “foreign official” for the purposes of the FCPA, and the importance of effective compliance programmes (eg, pre-M&A due diligence). 1.4 Recent Key Amendments to National Legislation There have not been significant legislative amendments to the key federal corruption stat - utes in 2024. 2. Bribery and Corruption Elements 2.1 Bribery The list below identifies the federal criminal stat - utes that are frequently used to prosecute brib - ery and corruption. Individual states may have similar statutes. Bribery – Generally • The FCPA is codified at 15 U.S.C. Sections 78dd-1 et seq. The statute prohibits “cor - ruptly” giving “anything of value” to “foreign official[s]” or political party members for the purpose of: (a) influencing the foreign official’s acts or decisions; (b) inducing the foreign official to act con - trary to their lawful duty; (c) securing “any improper advantage”; or
(d) inducing the foreign official to influence a foreign government “in order to assist... in obtaining or retaining business for or with, or directing business to, any person”. • The general prohibition on bribing US officials is codified at 18 U.S.C. Section 201(b). This statute prohibits “corruptly” giving or receiv - ing (or offering, demanding, etc) anything of value in return for an official act or omission by a public official. This law also prohibits exchanging things of value for an act of fraud by the public official (or for the public official’s assistance in a fraud). • The “gratuities” law, codified at 18 U.S.C. Section 201(c), prohibits giving “anything of value” to a current, former, or future public official “because of any official act” (unless such an act is provided for by law). This statute is broader than the “bribes” law at 18 U.S.C. Section 201(b) because it does not require “corrupt” intent or an explicit quid pro quo. • 18 U.S.C. Sections 207–08, the federal criminal conflict of interest statutes, restrict the conduct of federal officers and employ - ees during and after their federal service. In general, federal officials must not engage in official acts that could affect their personal financial interests (or those of their family members, their future employers, or certain affiliated organisations). These offences are strict liability, although wilful violations expose an official to more severe penalties. • 18 U.S.C. Sections 641, 654, and 666 broadly prohibit theft, wrongful conversion, embez - zlement, or bribery involving federal property or programmes funded by federal money. Generally speaking, the acts must be com - mitted “knowingly” or with a “corrupt intent” for criminal liability to apply. • Federal fraud statutes, especially the mail and wire fraud statutes at 18 U.S.C. Sections
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