Naming Bribe-Paying Third Parties Would Improve FCPA Compliance

24 June 2020 Anti-Corruption Report Publication
Author(s): David W. Simon Christopher Swift Olivia S. Singelmann Jenlain A. C. Scott

The vast majority of modern FCPA enforcement actions have involved improper payments made not by company employees but by third-party intermediaries acting on the company’s behalf. Notwithstanding the fact that third-party intermediary relationships pose the greatest risk of foreign bribery in violation of U.S. law, and the DOJ and the SEC’s high compliance expectations, the DOJ and SEC generally do not disclose the names of bribe-paying third-party intermediary companies and individuals in their FCPA resolution documents. There are obvious and valid due process reasons underlying the agencies’ refusal to disclose the names of uncharged individuals and entities. But the interests of preventing bribe paying – the core objective of the FCPA – should outweigh those legitimate due process concerns and warrant public disclosure of known bribe-paying intermediaries.

This article was originally published in the Anti-Corruption Report.