In recent years, investigations and prosecutions under the Foreign Corrupt Practices Act (FCPA) have been one of the most active areas of white-collar criminal enforcement, as we discussed in a recent column.1 The FCPA is applicable to a wide range of individuals and public and private entities, but the law has mostly been applied to public issuers of securities in the United States rather than private companies.
In this article, after discussing the reach of the FCPA generally, we will focus on civil and criminal enforcement authority applicable to private U.S. companies, which are referred to as “domestic concerns” in the FCPA. We will discuss recent enforcement activity involving private companies and their employees—notably, agreements between the Department of Justice (DOJ) and two private companies in the fall of 2016 in which prosecution was declined but disgorgement of ill-gotten profits required.2 We will conclude with some thoughts about why private companies may receive increasing attention in the future from FCPA enforcement authorities.
