In a recent speech, DOJ Principal Deputy Assistant Attorney General Nicole Argentieri noted that the DOJ plans “to vigorously enforce” the Foreign Extortion Prevention Act (FEPA).
Time will tell of course, but I have serious doubts that the DOJ will “vigorously enforce” FEPA.
Most FCPA enforcement actions which charge or find violations of the FCPA’s anti-bribery provisions involve an alleged “foreign official” who received things of value. Certain other actions may involve situations in which a “foreign official” was promised something of value in which the “foreign official” agreed to receive or accept the thing of value.
In theory then, seemingly all FCPA enforcement actions could result in a related FEPA prosecution (or at the very least FEPA investigation) given that FEPA generally makes it unlawful for a foreign official to “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, by making use of the mails or any means or instrumentality of interstate commerce.”
Is DOJ really going to investigate and potentially prosecute a mid-level procurement manager at an SOE who demands an internship for a family member, a low-ranking bureaucratic official participating in a golf outing followed by drinks, or a foreign physician demanding a contribution to his/her favorite bona fide charitable organization. All of these scenarios are straight from FCPA enforcement actions.
More recently, and using the Deere & Co. FCPA enforcement action as an example, is the DOJ going to investigate individuals associated with the Royal Thai Air Force, the Department of Highways, and the Department of Rural Roads for receiving things of value, including visits to massage parlors, from a Deere subsidiary?
Numerous other examples could also be cited.
How is the DOJ going to determine which FCPA enforcement actions should perhaps result in a related FEPA investigation / prosecution?
Only DOJ FCPA enforcement actions?
Also SEC FCPA enforcement actions? What about SEC FCPA enforcement actions that describe instances of foreign bribery but – for various reasons – only charge or find violations of the FCPA’s books and records and/or internal controls provisions?
FEPA has only been law for approximately 9 months (and was soon amended after enactment). Thus, it is obviously too early to assess whether the DOJ has “vigorously” enforced FEPA.
