Foreign Corrupt Practices Act (FCPA) Defense

An FCPA investigation may begin inside a company before the government makes contact. An internal audit flags payments to an overseas consultant. Company counsel asks an executive to sit for an interview. A subpoena seeks records about foreign agents, distributors, gifts, travel, or government customers. In other matters, federal investigators may already be examining transactions, emails, accounting entries, or third-party relationships.

For an individual, the question is not simply whether a payment was made abroad. It is what the payment was for, who authorized it, what the person knew, and whether the government can connect that conduct to a criminal violation.

Bedi & Singer represents individuals in complex federal white-collar investigations and prosecutions, including Foreign Corrupt Practices Act matters.

The FCPA’s anti-bribery provisions prohibit certain covered persons and entities from corruptly offering, promising, authorizing, or providing something of value to a foreign official to influence official action or secure an improper advantage in order to obtain or retain business. Separate accounting provisions apply to issuers and address books and records and internal accounting controls. These provisions can reach individuals as well as companies.

Not every overseas payment, gift, travel expense, commission, or business courtesy is unlawful. The FCPA contains an exception for certain facilitating or expediting payments and affirmative defenses for qualifying lawful payments and reasonable, bona fide expenditures.

An executive or employee may first encounter an FCPA issue through a company’s internal investigation. The company’s objectives and the individual’s are not necessarily identical, and statements made during an internal investigation can become important if information is later provided to federal authorities.

Not every internal inquiry will become a federal case. An individual may still want independent advice when potentially criminal conduct is being investigated.

An FCPA defense should begin with what the individual actually did, not a general description of the company’s international business. It may turn on questions like these:

• Did the person know the identity or status of the recipient?
• Was a payment or benefit intended to influence an official act or obtain business?
• What did the individual know about an agent, consultant, distributor, or other intermediary?
• Do emails, invoices, expense records, or accounting entries accurately reflect the transaction?
• Did the individual have authority over the payment or accounting decision?
• Are investigators inferring corrupt intent from conduct that had a legitimate business explanation?
• Are statements by cooperating witnesses or other employees complete and reliable?

Bedi & Singer represents professionals and executives in federal investigations and internal investigations, from the investigative stage through motions, trial, sentencing, and appeal. Jonathan Bedi and Dena Singer work together on Bedi & Singer’s cases.

The goal is to understand the individual’s actual role, separate it from the conduct of others where appropriate, and build a defense based on the evidence rather than the label attached to the investigation.