Who Needs FEPA?
As long as political actors have existed, political actors have taken credit for filling a perceived legal gap by enacting new laws.
Time will tell of course, but query whether the recently enacted Foreign Extortion Prevention Act (FEPA) (a law which seeks to capture the so-called “demand” side of foreign bribery) was even needed.
As has been discussed on these pages over the last several years when various versions of FEPA were introduced in Congress, the Department of Justice already has several criminal statutes available to prosecute alleged “foreign officials” who receive bribes and has been prosecuting such cases for a long time.
DOJ Seeks Forfeiture Of N.Y. Apartments Associated With Former Mongolian Prime Minister
Time will tell of course, but query whether the recently enacted Foreign Extortion Prevention Act (FEPA) (a law which seeks to capture conduct by corrupt foreign officials) was even needed.
As has been discussed on these pages over the last several years when various versions of FEPA were introduced in Congress, the Department of Justice already has several criminal statutes available to prosecute alleged “foreign officials” who receive bribes and has been prosecuting such cases for a long time. Prosecutors also have civil statutes available to them in which the U.S. can seek forfeiture of property located in the U.S. owned by foreign officials who purchased property, in whole or in part, with the proceeds of corruption.
As to the later, the latest example occurred earlier this week as the DOJ announced unsealing of “a civil complaint seeking to forfeit two luxury apartments located in New York City at 21 East 61st Street and 230 West 56th Street, purchased for $14 million” “with the proceeds of unlawfully awarded Mongolian mining contracts, at the direction and for the benefit of then-Mongolian Prime Minister Sukhbaatar Batbold [pictured] and his family.”
A Worthwhile Listen Regarding FEPA
Several prior posts (here, here, here) have discussed various aspects of the Foreign Extortion Prevention Act (FEPA) – a law enacted in 2023 to (perhaps) better capture the so-called “demand-side” of foreign bribery as the Foreign Corrupt Practices Act only captures the so-called “supply” side.
In this recent interview posted to YouTube, Patrick Stokes responds to many FEPA questions. Stokes (currently a partner at Gibson Dunn) previously served as the DOJ’s FCPA Unit Chief among other DOJ positions.
A common answer Stokes gave to many FEPA questions – and rightly so – was along the lines of “well, the DOJ has already prosecuted bribe receiving foreign officials under other laws – as well as the DOJ can already do these things.” (These are my summary quotes – not actual quotes from Stokes).
Thinking Of The FCPA And FEPA In Reverse
A public official corruptly demanded, sought, received, and accepted something of value from a company in return for being influenced in the performance of an official act – specifically agreeing to help influence the award of a contract to a company who provided the official with the thing of value.
Sounds like a relatively straight-forward Foreign Corrupt Practices Act enforcement action and a fact scenario ripe for enforcement under the recently enacted Foreign Extortion Prevention Act (FEPA).
However, the above fact scenario does not involve a foreign official who demanded and received payments from a U.S. company, but rather a U.S. official who demanded and received payments from a South Korean company. (See here for the recent DOJ release).
Upcoming DOJ Whistleblower Program – How Will This Work?
Recently, DOJ officials announced a new upcoming whistleblower program (see here and here for prior posts).
This post ponders a few questions about how the whistleblower program will actually work in connection with Foreign Corrupt Practices Act and Foreign Extortion Prevention Act enforcement actions – two areas in which DOJ officials have said they are “especially interested” in receiving information about.
In pertinent part, Deputy Attorney General Lisa Monaco stated: