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The textbook example of a Foreign Corrupt Practices Act (FCPA) violation involves a company employee directly giving a bribe to a foreign official. But in many, if not most, of the FCPA cases prosecuted today, a third-party intermediary such as an in-country agent or consultant is the party who made the improper payment. In these cases, the company that engaged the third party’s services cannot plead ignorance and escape FCPA liability: The statutory text makes clear that a company violates the Act if it gives a payment to a third party and is “aware” that the third party will, or is “substantially certain” to, use that payment to bribe a foreign official. Caution should therefore be the watchword for any company operating through an intermediary in a foreign country.

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