As highlighted in this post, 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).
This post posed several questions about the Foreign Extortion Prevention Act.
Consistent with this post from 2019 and this post from 2021 (when versions of the bill were also introduced in Congress), 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.
The proposed FCPA amendments to capture the “demand side” in the FCPA’s anti-bribery provisions do not disrupt the current structure of the FCPA (i.e. dd-1, dd-2, dd-3, the definitions, the exemption, the affirmative defenses).
The proposed amendments divide each section of the FCPA’s anti-bribery provisions (dd-1, dd-2 and dd-3) into a “supply prohibition” and a “demand prohibition.” For the “demand prohibition” the proposed amendments generally mirror the existing substantive language of the Foreign Extortion Prevention Act. Moreover, the “demand prohibition” in each statutory section includes a jurisdictional element that is consistent with the FCPA’s current jurisdictional elements depending on the status of the “supply-side” participant.
If a foreign official “demands” a bribe from a U.S. issuer, the “demand side” prohibition will apply irrespective of whether such conduct makes use of the mails or any means or instrumentality of interstate commerce in furtherance of the conduct (consistent with the current alternative jurisdiction prong found in dd-1 applicable to U.S. issuers).
If a foreign official “demands” a bribe from a non-U.S. issuer, the “demand side” prohibition will apply to the extent use of the mails or any means of instrumentality of interstate commerce is used in furtherance of the “demand” or subsequent receipt (consistent with the current jurisdiction prong found in dd-1 applicable to non-U.S. issuers and recognizing that the alternative jurisdiction prong found in dd-1 is applicable only to U.S. issuers).
If a foreign official “demands” a bribe from a “domestic concern” (FCPA speak for all forms of U.S. business organizations other than U.S. issuers as well as all U.S. citizens, nationals, etc.) the “demand side” prohibition will apply irrespective of whether such conduct makes use of the mails or any means or instrumentality of interstate commerce in furtherance of the conduct (consistent with the current alternative jurisdiction prong found in dd-2 applicable to domestic concerns).
If a foreign official “demands” a bribe from a “person other than an issuer or domestic concern” (FCPA speak for non-issuer foreign business organizations and foreign nationals), the “demand side’ prohibition will apply to the extent the foreign official “while in the territory of the United States corruptly makes use of the mails or any means or instrumentality of interstate commerce in furtherance of the conduct (consistent with the current jurisdiction prong found in dd-3).
Might there be some jurisdictional struggles in prosecuting foreign officials for “demanding” bribes under the proposed amendments? Surely there will be, but the proposed amendments keep in place the current jurisdictional elements of the FCPA given the status of the actor.
In short, if Congress determines that a demand-side prohibition of bribery is needed, for the reasons discussed in prior posts and this post, it belongs in the FCPA and these proposed FCPA amendments demonstrate how to accomplish it.
