Chapter 4: The FCPA’s exception, affirmative defenses and related risk management strategies
Even if all of the substantive elements of the FCPA’s anti-bribery provisions are applicable and there is jurisdiction over the actor, the final step in analyzing the anti-bribery provisions is determining whether the facilitating payment exception or the so-called local law or reasonable and bona fide expenditures affirmative defenses apply. Chapter 4 highlights legal authority and non-legal sources of information relevant to these provisions, and relevant to the two distinct questions highlighted above in connection with many instances of scrutiny and enforcement, you will learn that while the FCPA expressly exempts facilitating payments, it is an open question whether this statutory exception has any real meaning or whether the enforcement agencies have, through their enforcement theories, essentially repealed this exception. Regardless, prevailing best practices seem to be prohibiting facilitating payments except in cases of health and safety and consistent with this approach, training best practices will be highlighted. Along with third parties, corporate hospitality and related expenditures often present the greatest challenges to a compliance program given that business organizations routinely promote their products and services and execute contracts. Because of this, an additional component of having “FCPA goggles” is understanding the contours of the reasonable and bona fide expenditures affirmative defense and you will learn of compliance practices to minimize risk in this area. Relevant to the facilitating payment exception and reasonable and bona fide expenditures affirmative defense, you will once again have a chance to assess your acquired knowledge of the provisions through real-world issue-spotting scenarios.
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