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Is FEPA As Impactful As It Was Promised to Be?
For those who advise clients on matters relating to cross-border compliance, the Foreign Corrupt Practices Act, 15 U.S.C. §§78dd-1, et seq. (FCPA), has been the primary federal anti-bribery law since 1977. That was until Dec. 22, 2023, when President Biden signed into law the Foreign Extortion Prevention Act, 18 U.S.C. §201 (FEPA), as part of the National Defense Authorization Act for Fiscal Year 2024. In doing so, the federal government filled a longstanding gap that was unaddressed by FCPA: the "demand side" of foreign bribery and corruption.
FCPA focuses only on the "supply side" of bribery and corruption: it applies to "issuers" (public corporations; 15 U.S.C. §78c(a)(8)) and "domestic concerns" (U.S. citizens, nationals, residents and business entities; 15 U.S.C. §78dd-2(h)(1)) who engage in bribery or corruption of a "foreign official" (15 U.S.C. § 78dd-2(h)(2)).
FEPA, which amends the federal domestic bribery statute, takes aim at the "demand side" of bribery and corruption: foreign officials who demand or receive bribes (18 U.S.C. 201(f)(1)). It is meant to apply extraterritorially to such foreign officials — punishing any acts committed abroad with a U.S. nexus. Together, the FCPA and FEPA are now believed to cover the field for foreign bribery and corruption involving U.S. individuals or entities and foreign officials.
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