- FCPA Professor - https://fcpaprofessor.com -

The “Foreign Extortion Prevention Act” Is Still Flawed

Earlier this month, the Counter-Kleptocracy Act [1] was introduced in the House of Representatives by Representative Steve Cohen (D-TN) and Representative Joe Wilson (R-SC).

As explained in this release [2], “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:

Of the bills referenced above, the Foreign Extortion Prevention Act has received the most coverage on these pages (see here [14], here [15], here [16], here [17] and here [18] for prior posts).

The Foreign Extortion Prevention Act is included as Section 4 of the Counter-Kleptocracy Act and, like prior versions, seeks to amend 18 USC 201 (the so-called domestic bribery statute and not the Foreign Corrupt Practices Act) to address the so-called “demand” side of bribery.

As indicated in prior posts, including the “demand” side prohibition in Title 18 (the Criminal Code) while having the “supply” side prohibition in the Foreign Corrupt Practices Act Title 15 (the Securities Laws) is 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 seeks to capture).

For this reason, two years ago I drafted statutory amendments to the FCPA [17] to amend the FCPA’s anti-bribery provisions to include the “demand” side of bribery – if indeed Congress believes that explicitly capturing the “demand” side is needed (against the backdrop of other laws the DOJ is using with increasing frequency to capture the “demand” side).