USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
quartered in the USA and their employees, agents, etc) are required to comply with the FCPA’s anti-bribery provisions, regardless of where their operations may be located. Such entities may be held liable for violations of the
or a “domestic concern” or was physically pre - sent in the US. The Second Circuit is only one of 11 intermediate federal appellate courts, and the Fifth Circuit has declined to follow the same approach. Domestic Statutes As noted, US courts presume that most US criminal statutes do not apply extraterritorially. For example, courts have ruled that 18 U.S.C. Sections 666, 1341, 1343, and 1346 do not apply extraterritorially. It is important to note, however, that even if specific statutes are not applied extraterritori - ally, non-US conduct may fall under the scope of a statute that does, such as the Travel Act or some charges under 18 U.S.C. Section 371. For example, a court has ruled that a defendant who allegedly accepted a bribe in Paris violated the Travel Act, regardless of whether 18 U.S.C. Section 201 applied extraterritorially. Moreover, statutes involving domestic bribery – that is, bribes paid to US officials – are likely to have a US nexus. Authorities are more likely to rely on a US nexus for jurisdictional arguments than a potentially complex extraterritoriality theory. US Nexus Even US laws that do not have extraterritorial effect may apply in cases involving foreign con - duct if certain US connections exist, including emails sent through a US server, telephone calls placed to or from the United States, or US dollar- denominated transactions clearing through US correspondent bank accounts. 3.3 Corporate Liability Under general principles of US law:
FCPA outside the USA. FCPA – Agent Liability
A person or legal entity acting as an agent of an issuer or domestic concern can face FCPA liability for engaging in conduct in furtherance of an improper payment, even when the issuer/ domestic concern did not expressly direct or authorise the improper payment. This type of liability may apply without regard to where the improper payments were made if the conduct involves a US person or there is a connection to the USA. FCPA – Conspiracy and Accomplice Liability If a non-US company acts in concert with another company or person, and jurisdiction can be established for that company or person (eg, because they are a domestic concern), it is possible that the non-US company could be held liable for either conspiring with or aiding and abetting the US person or legal entity that is directly subject to the FCPA, or wilfully causing the US person or legal entity to violate the FCPA. As with direct liability for issuers and domestic concerns, this type of liability may apply without regard to where any improper payments were made, as long as the co-conspirator is organised under the laws of the USA or any state in the USA, or there is a connection to the USA. The United States Court of Appeals for the Sec - ond Circuit, however, has ruled that a non-res - ident foreign national may not be charged with conspiracy to violate the FCPA or with aiding and abetting an FCPA violation unless the for - eign national acted as an agent of an “issuer”
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