Private Suits Under FCPA — An Ill-Advised Idea

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Late last year, Rep. Ed Perlmutter (D-Colo.) introduced a bill in the House of Representatives that would amend the Foreign Corrupt Practices Act (FCPA) to permit private suits against certain foreign companies and individuals. The bill, entitled the “Foreign Business Bribery Prohibition Act of 2011,” would significantly alter the landscape of FCPA enforcement, and not for the better.

Perlmutter proposed similar versions of the bill twice before, in 2008 and 2009, and the bill did not make it out of committee either time.

The FCPA prohibits bribing foreign government officials. The proposed bill would amend the statute to allow for private lawsuits against foreign concerns for alleged violations of the statute’s anti-bribery provisions. These lawsuits could be brought by (1) any issuer, defined as an entity that issues securities under U.S. securities laws and its employees; (2) any domestic concern, defined as any U.S. citizen, national, or resident, or any business that is principally located in the U.S. or incorporated in the U.S.; or (3) any other United States person, defined as any person or business entity other than an issuer or a domestic concern. A foreign concern would be defined as any person or entity other than an issuer or a domestic concern. The bill would not allow for a private right of action against issuers or domestic concerns.

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