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Compliance Fridays: Introduction to the Foreign Corrupt Practices Act

Buckner assists organizational clients with developing, auditing and enhancing compliance programs. The firm’s “Compliance Fridays” blog series is designed to provide clients and interested readers with best practices and strategies for, as well as insights into, compliance. An effective compliance program helps an organization, and its employees, agents and officers, conduct operations and activities within the scope of the law and internal policy; ethically; and with the highest level of integrity and professionalism. Today’s post introduces the USA’s Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. (“FCPA”).

The USA Department of Justice website states the FCPA “was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. Specifically, the anti-bribery provisions of the FCPA prohibit the willful use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person.” The FCPA’s anti-bribery provisions applies “to all U.S. persons and certain foreign issuers of securities” and, after the enactment of amendments in 1998, “to foreign firms and persons who cause, directly or through agents, an act in furtherance of such a corrupt payment to take place within the territory of the United States”. Finally, the FCPA “requires companies whose securities are listed in the United States to meet its accounting provisions”, which “require corporations covered by the provisions to (a) make and keep books and records that accurately and fairly reflect the transactions of the corporation and (b) devise and maintain an adequate system of internal accounting controls”.

Organizations that are affected by the FCPA should implement a foreign/international anti-corruption compliance policy and program. Further, according to Stephen Clayton in a June 1, 2011, Association of Corporate Counsel article, “Top Ten Basics of Foreign Corrupt Practices Act Compliance for the Small Legal Department”, a “member of the senior management team of the company must be designated as responsible for FCPA compliance and be accountable for the program”.

Contact attorney Michael Buckner (+1-954-941-1844; mbuckner@bucknersportslaw.com) for more information on, or to assist with auditing, a compliance program.

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About Michael L. Buckner, Esquire

An attorney who provides clients with internal investigation, civil litigation, estate planning and compliance services.

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