With recent announcements from the Department of Justice on corporate criminal enforcement in mind, businesses operating in international trade should be aware of their potential exposure to the Foreign Corrupt Practices Act (FCPA). While often associated with multinational corporations and high-profile bribery cases, any company doing business with non-US parties could find themselves facing a criminal investigation for their foreign party’s actions if they knew, or should have known, there was corrupt activity.
Compliance personnel and corporate officers must avoid “self-blinding,” as the definition of knowledge used in the FCPA anticipates attempts by persons and organizations to avoid learning the truth about a corrupt transaction. Under the FCPA, “a person’s state of mind is “knowing” with respect to conduct, a circumstance, or a result if the person: is aware that [he] is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; or has a firm belief that such circumstance exists or that such result is substantially certain to occur (15 U.S.C. § 78dd-2(h)(3)(A)(i), (ii)).” Falling back on the “I had no idea” defense is not a good plan in these circumstances..