{"id":11235,"date":"2024-03-08T21:54:40","date_gmt":"2024-03-08T21:54:40","guid":{"rendered":"https:\/\/www.americanconference.com\/fcpa-dc\/?page_id=11235"},"modified":"2024-06-19T14:26:58","modified_gmt":"2024-06-19T14:26:58","slug":"the-foreign-extortion-prevention-act-much-ado-about-nothing","status":"publish","type":"page","link":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/the-foreign-extortion-prevention-act-much-ado-about-nothing\/","title":{"rendered":"The Foreign Extortion Prevention Act: Much Ado About Nothing?"},"content":{"rendered":"
\r\n

By Jaclyn Jaeger<\/p>\r\n

Friday, March 08, 2024<\/p>\r\n<\/div>\r\n\r\n\r\n\r\n\r\n

In December 2023, President Joe Biden signed the Foreign Extortion Prevention Act (FEPA) into law under the broader Fiscal Year 2024 National Defense Authorization Act<\/a> (NDAA). While FEPA\u2019s sponsors hailed it<\/a> as \u201cthe most significant international criminal anti-corruption legislation\u201d since the passage of the Foreign Corrupt Practices Act (FCPA) of 1977, many in the legal community are questioning how enforceable it will be in practice.<\/p>\r\n\r\n

The FCPA has only ever criminalized the \u201csupply\u201d side of foreign bribery\u2014the offering, promising, authorizing, or paying bribes to a foreign government official. \u201cThere has been a long-time push by folks in Congress and outside groups to have both sides of a foreign bribery relationship criminalized,\u201d commented Goodwin partner James Gatta, former chief of the Criminal Division at the U.S. Attorneys\u2019 Office for the Eastern District of New York. <\/p>\r\n\r\n

That\u2019s where the FEPA comes into play, by criminalizing the \u201cdemand\u201d side of foreign bribery from a U.S. issuer, US domestic concern, or any person in the territory of the United States.\r\nThe FEPA defines \u201cforeign official\u201d to include \u201cany official or employee of a foreign government or any department, agency, or instrumentality thereof\u201d or \u201cany senior foreign political figure\u201d; any official or employee of a public international organization; or any person acting in an \u201cunofficial\u201d capacity on behalf of those entities.<\/p>\r\n\r\n

At just a few paragraphs long (starting on p. 1,843 of NDAA), the FEPA\u2019s brevity still packs a strong punch, carrying a potential fine of up to $250,000 or three times the monetary equivalent of the bribe\u2019s value, whichever is greater. Comparably, the FCPA caps potential fines at twice the monetary gain obtained. FEPA violations also carry a potential 15 years\u2019 imprisonment, compared to the FCPA\u2019s statutory maximum of up to five years.<\/p>\r\n \r\n

Legal hurdles<\/strong><\/p>\r\n

Conceptually, the FEPA makes it easier for the Department of Justice (DoJ) to pursue foreign officials in a corruption case. Practically speaking, however, a FEPA case could be as difficult to prove as an FCPA case in some respects.<\/p>\r\n\r\n

For one, because the FEPA amends the domestic bribery statute (18 U.S.C. Section 201), as opposed to amending the FCPA, the FEPA establishes a more stringent quid pro quo standard than that of the FCPA. Specifically, prosecutors have a higher bar to meet because they must prove that a bribe was paid by a foreign official abroad in exchange for a specific \u201cofficial act,\u201d said Brian Whisler, a partner at Baker McKenzie and senior leader of the firm\u2019s Litigation and Government Enforcement Practice. \u201cThose are tough cases because prosecutors have to pinpoint the specific act that follows the allegedly corrupt payment.\u201d<\/p>\r\n \r\n

Under 18 U.S.C. Section 20, the FEPA criminalizes foreign officials who \u201ccorruptly demand, seek, receive, accept, or agree to receive or accept, directly or indirectly, anything of value personally or for any other person or nongovernmental entity\u201d in return for:<\/p>\r\n\r\n