Proposed Bill To Allow Private Enforcement Of The FCPA

We have received several inquires regarding H.R. 3531, a bill that was recently introduced in the U.S. House of Representatives to amend the Foreign Corrupt Practices Act ("FCPA") to permit private suits against certain foreign companies and individuals. On November 30, 2011, Congressman Ed Perlmutter (D-CO) introduced the bill, entitled the "Foreign Bribery Prohibition Act of 2011." If passed, the bill would represent a significant change in FCPA law and enforcement. Congressman Perlmutter proposed similar versions of this bill in the 110th and 111th Congress, in 2008 and 2009, respectively. Neither of the prior bills made it out of committee.

Background

The FCPA makes it a criminal and civil offense to pay, offer, or give anything of value to a foreign official for the purpose of obtaining or retaining business or obtaining favorable or preferential treatment from the government. The FCPA's antibribery prohibitions apply to three separate groups of private actors: (1) "issuers" – defined as any entity that issues securities registered under United States securities laws, as well as the entity's employees and agents, 15 U.S.C. § 78dd-1; (2) "domestic concerns," defined as any United States citizen, national, or resident, or any business entity that is principally located in the United States or organized under the laws of a State, id. § 78dd-2; and (3) any persons or business entities "other than issuers or domestic concerns," provided that such person or entity committed a prohibited act while in the United States and by means of interstate commerce, id. § 78dd-3.

Courts have uniformly held that the FCPA does not contain an implied private right of action, see Lamb v. Phillip Morris Inc., 915 F.2d 1024 (6th Cir. 1990), and Congress has amended the FCPA numerous times without adding such a private right. Accordingly, the authority to enforce the FCPA currently rests exclusively with the DOJ and the SEC.

The Proposed Bill

H.R. 3531 would amend § 78dd-3 to permit any issuer, domestic concern, or other United States person to bring suit against a "foreign concern" – defined as any person or entity other than an issuer or a domestic concern – for violations of the FCPA's substantive antibribery provisions. A plaintiff would be required to prove that the defendant's violation prevented the plaintiff from obtaining or retaining business, and that the violation assisted the foreign concern in obtaining or retaining such business. Under the...