Under the Foreign Corrupt Practices Act (FCPA), it is unlawful to make a corrupt payment to a foreign government official in order to obtain or retain business. Enacted in 1977, the law prohibits bribery by, among others, U.S. “domestic concerns,” which includes U.S. companies and partnerships, and “officers, directors, employees, … agents, … or stockholders … acting on behalf of a domestic concern.” 15 U.S.C. §78dd-2.
The range of individuals subject to prosecution under the law has been contested in recent years as criminal and civil enforcement of the FCPA has increased. The meaning of the word “agent” has generated particular controversy. Global companies routinely engage intermediaries in dealings with foreign government officials, so questions naturally arise as to who exactly may be treated as an “agent” of a “domestic concern.” If given a broad construction, the statutory language would expose a wide range of individuals who live and work abroad to possible prosecution in the United States. This would, in turn, pose important questions of extraterritoriality and fairness.
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