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Questions About The Foreign Extortion Prevention Act

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As highlighted here, once again the Foreign Extortion Prevention Act was introduced in Congress in an attempt to address the so-called “demand side” of bribery.

Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).

The Foreign Extortion Prevention Act is odd in several respects.

Bribery of a “foreign official” involves two parties (the supply side and the demand side).

From a U.S. law enforcement perspective, is a specific demand side prohibition even needed?

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Once Again, The Foreign Extortion Prevention Act Is Introduced In Congress

Capital Hill

Since at least 2019 (see here for the prior post), there have been efforts to address the so-called “demand side” of bribery through a bill titled the “Foreign Extortion Prevention Act.”

Recently, Senators Sheldon Whitehouse (D-RI) and Thom Tillis (R-NC), together with Representatives Sheila Jackson Lee (D-TX) and Joe Wilson (R-SC) once again introduced the Foreign Extortion Prevention Act.” (See here).

Similar to prior versions, the bill does not seek to amend the Foreign Corrupt Practices Act, but rather 18 USC 201 (the domestic bribery statute).

Set forth below is the existing text of 18 USC 201 in italics with language from the proposed “Foreign Extortion Prevention Act” included in bold.

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The “Foreign Extortion Prevention Act” Is Still Flawed

Capital Hill

Earlier this month, the Counter-Kleptocracy Act was introduced in the House of Representatives by Representative Steve Cohen (D-TN) and Representative Joe Wilson (R-SC).

As explained in this release, “the legislation consolidates seven bipartisan counter-kleptocracy bills led by members of the Helsinki Commission and the Caucus against Foreign Corruption and Kleptocracy during the 117th Congress.”

As further explained in the release, The Counter-Kleptocracy Act includes the following counter-kleptocracy bills:

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A Demand Side Prohibition Belongs In The FCPA And Here Is How To Accomplish It

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Prior posts herehere and here in 2019 highlighted a bill introduced in the House of Representatives titled the Foreign Extortion Prevention Act which sought to capture the so-called “demand side” of bribery by foreign officials given that the FCPA’s current anti-bribery provisions only capture the so-called “supply side” of bribery.

The bill sought to prohibit such conduct – not through amending the FCPA – but through amending 18 USC 201 (the domestic bribery statute) and the prior post highlighted how this potential statutory placement was odd and could lead to several areas of incongruous between liability for the “bribe” payor (what the FCPA captures) and the “bribe” demander (what the Foreign Extortion Prevention Act sought to capture).

Recently, Representative Shelia Jackson Lee (D-TX), along with a bipartisan group of co-sponsors, reintroduced the bill (H.R. 4737). Once again, the bill seeks to capture the “demand side” of bribery through amending 18 USC 201 – and not the FCPA – and therefore presents the same issues as hinted at above.

Consistent with this post from 2019, I continue to believe that if Congress seeks to explicitly capture the “demand side” of bribery (the DOJ already uses the money laundering laws against alleged “bribe taking” foreign officials when there is jurisdiction), this goal is best accomplished through amending the FCPA and set forth here are FCPA amendments I previously drafted (and shared with certain legislative aides) to accomplish this task.

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Bill Seeks To Transfer Pharma FCPA Civil Settlement Amounts To Pediatric Disease Research

gmiller

Childhood cancer and other rare pediatric diseases are heartbreaking.

But should certain FCPA settlement amounts fund pediatric disease research?

Representative Jennifer Wexton (D-Va) thinks so as she, along with co-sponsors  Tom Cole (R-OK), Peter Welch (D-VT) and Gus Bilirakis (R-FL), recently introduced H.R. 6556 – a bill that seeks to amend the FCPA’s anti-bribery provisions by transferring FCPA civil settlement amounts by pharmaceutical companies to pediatric disease research. The bill is titled the Gabriella Miller Kids First Research Act 2.0. Miller (pictured – died of cancer in 2013 at the age of 10).

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