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Foreign Companies Prosecuted in the U.S. for Bribes Overseas
In an effort to level the playing field for U.S. businesses overseas, many OECD countries adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1998. Nearly 10 years later, the main result may have been to enlarge the playing field of U.S. law enforcement. As discussed in Michael E. Clark's companion article on the left, the 1998 amendments expanding jurisdiction of the Foreign Corrupt Practices Act (FCPA) were just the start of what catapulted the FCPA to the forefront of today's business risks. Foreign subsidiaries of U.S. companies not otherwise subject to the FCPA are now being indicted as 'agents' of their U.S. affiliates. Meanwhile, some foreign companies, wondering whether listing on a U.S. exchange is worth it, are looking around for a new league.
Chilling Effect on U.S. Listing
Last year, the DOJ announced its first criminal enforcement action against a foreign issuer for violating the FCPA. See Press Release #06-700, U.S. Resolves Probe Against Oil Company that Bribed Iranian Official (Oct. 13, 2006). No mere SEC sanction for books-and-records violations, this was a U.S. criminal prosecution for payments overseas, by a foreign company, in violation of FCPA ' 30. United States v. Statoil, ASA, 06 Cr. 960 (S.D.N.Y. Oct. 13, 2006). 'Although Statoil is a foreign issuer,' said Assistant Attorney General Alice Fisher in the DOJ press release, the FCPA 'applies to foreign and domestic public companies alike, where the company's stock trades on American exchanges.' The deferred prosecution included a $10.5 million penalty, further disgorgement of an additional $10.5 million, and compliance monitoring for three years, all in addition to a $3 million fine levied by Norway. Fisher warned that the DOJ is committed to enforce the FCPA vigorously 'against all international businesses whose conduct falls within its scope.'
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