With all the attention being paid to the Justice Department’s aggressive prosecution of the Foreign Corrupt Practices Act, companies might be tempted to celebrate if an internal investigation revealed that no bribes had been paid to foreign officials (as might give rise to an FCPA violation), even though there had been commercial bribes paid to non-government foreign business representatives.

Before the celebration begins, however, there are some additional rocks to flip over.  While the FCPA’s anti-bribery provisions may not apply, DOJ can still charge foreign commercial bribes under an alternative, non-FCPA theory.  Most prominent of these is the Travel Act, which DOJ has occasionally used to charge foreign bribes.

First, let’s first get clear on how the Travel Act works, because it’s somewhat unusual.  The Travel Act is found at 18 U.S.C. § 1952, which is part of the anti-racketeering chapter.  The Travel Act makes it a crime to engage in any interstate or foreign travel, or to use any mail or facility in foreign or interstate travel, with the intent to “carry on” or “facilitate” any “unlawful activity.”

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