The second and third option used by the United States government is prosecution agreements. The most common of these agreements is a deferred prosecution agreement (DPA). One example of a DPA being used was in 2012 with Data Systems & Solutions LLC (DS&S). In this case the government came to an agreement with DS&S where the company would pay $8.82 million and be subject to periodic reports to the USDOJ for a two year period. Another tool the USDOJ and SEC uses to resolve FCPA enforcement actions is a non-prosecution agreement (NPA). An example of an NPA being used was in 2011 with Armor Holdings Inc. a body armor company that paid a commission to a third party knowing that part of the commission was being passed to a UN official. In this case the government chose to us a NPA and issued a $10.2 million criminal penalty in addition to the implementation of rigorous internal controls. The use of DPAs and NPAs has increased as the government and companies are looking to solve some of the corruption going on in foreign transactions but the guidelines for one of these options is not easy. Former Assistant Attorney General Lanny Breuer made the comment that “a company agreeing to a DPA or NPA must “almost always . . . acknowledge wrongdoing, agree to cooperate with the government’s investigation, pay a fine, agree to improve its compliance program, and agree to face prosecution if it fails to satisfy the terms of the agreement.” Throughout the enforcement history, prosecution agreements and guilty pleas have been the most common tools used in the fight against corruption. However, using these settlement techniques has lead to fewer court cases and in turn fewer judicial interpretations of the Act.

With the limited judicial interpretation and guidance from the courts, there have been a number of cases that have lasted years. One of the most discussed cases in relation to FCPA enforcement has been US v. Kay. United States v. Kay, 513 F.3d 432 (5th Cir. 2007). This highly publicized and contested case ended in 2008 when the United States Supreme Court denied a petition to hear the Kay case. This case dealt with an American Rice company that exported to Haiti. In order to reduce the Haitian taxes on their products the defendants had to pay various government officials. The company learned of these payments and self-reported the violation where Mr. Kay and Mr. Murphy (defendants) were then indicted on over a dozen counts including violating the FCPA. In this case the defendants argued that the language was ambiguous and that enforcement against them would violate due process (US v. Kay, 513 F.3d 432, 440-46 (5th Cir. 2007). However the court held that a “man of common intelligence would have understood that in bribing foreign officials [they were] treading close to a reasonably-defined line of illegality.” The court stated that the “defendants took this risk, and splitting hairs as to the illegality of one type of action under the business nexus test does not allow them to argue successfully that the FCPA’s standards were vague.” The two defendants in this case both received jail time as well as fines.

Another case that has caused some noise in regards to FCPA enforcement was SEC v. Sharef, 11 CIV. 9073 SAS, 2013 WL 603135 (S.D.N.Y. Feb. 19, 2013). In this case the government’s claim against a foreign executive was dismissed based on lack of personal jurisdiction; this was the first time in FCPA history that a court ruled that there was a lack of personal jurisdiction over a foreign executive. Though there have not been many cases that have gone to trial, there have been an increasing number of companies that have chosen this path instead of taking the hefty penalties imposed under the plea or prosecution agreements.

In addition to litigation involving the FCPA, American businesses have also sought guidance from the USDOJ on the scope of the enforcement provisions.  For example, the United States Chamber of Commerce, an association of business people to promote commercial and industrial interests in the community, stated that the FCPA “hampers American business because of how broadly it can be applied.” To ease these problems, the USDOJ recently released a Resource Guide in an effort to clarify some of the long standing questions by business leaders and members of the international community as to the application of the FCPA.  Though the Resource Guide addressed some of the issues, there are still some areas that remain a concern for American business interests.  For example, pharmaceutical companies are concerned about the FCPA implications of providing gifts or other incentives to foreign doctors (often government employees) to use their branded medications rather than generic drugs, even though this practice is common in the United States. Though the release of the Resource Guide has helped in some areas that were once confusing, there are still a number of questions that have not been answered through the government’s explanation.

Beyond the FCPA, the growing concern by many other countries regarding corruption and bribery to facilitate business transactions has led to the development of many conventions and treaties that deal directly with corruption and bribery. In 1997, the Organization for Economic Co-operation and Development (OECD) developed the Anti-Bribery Convention, which has garnered the support of 37 countries from around the world, including the United States, Russia, Japan, Brazil, and South Africa. The Anti-Bribery Convention entered into force on February, 15, 1999 after being signed into law by President Clinton on November 10, 1998. Two key components of the OECD’s Convention are the provision that require parties to criminalize bribery of foreign public officials in international business transactions and the implementation through peer monitoring and reporting.  In addition to the OECD Convention, the United Nations Convention on Corruption entered into force in 2005.  Like the OECD Anti-Bribery Convention, the UN Corruption Convention requires criminalization of domestic and foreign bribery as well as peer monitoring.  To comply with these international obligations to combat bribery and corruption, many countries are also enacting domestic laws regarding bribery and corruption that occur outside their territorial boundaries.  For example, Canada recently passed their version of a foreign corrupt practices law in February 2013.