Earlier this week, a top U.S. Department of Justice ("DOJ") official spoke in Moscow at the 3rd Russia and Commonwealth of Independent States Summit on Anti-corruption. While encouraging Russia to adopt its own anti-bribery legislation, Assistant Attorney General Lanny A. Breuer touted the United States' "aggressive" enforcement of the Foreign Corrupt Practices Act (FCPA) and warned that the DOJ was "not shy" about using this "strong enforcement mechanism." Prosecutions under the FCPA -- which prohibits the bribery of or offer to pay anything of a value to a foreign official for a corrupt purpose -- have increased exponentially in recent years, from charges against just two individuals in 2004, for a total of $11 million in fines, to charges against more than 50 individuals in 2009 and 2010, resulting in nearly $2 billion in collected fines, according to Breuer.

Although the DOJ has traditionally brought FCPA cases against U.S. citizens conducting business abroad, foreign executives working for U.S. companies and foreign corporations that trade on U.S. exchanges, as well as their executives, Breuer cautioned that foreign officials who launder the proceeds of bribery through U.S. financial institutions could also be liable under U.S. money laundering statutes. He noted that the DOJ has already, on multiple occasions, brought such charges against foreign officials. Breuer's message was consistent with earlier remarks by United States Attorney General Eric Holder regarding the U.S. government's commitment to ensuring that "corrupt officials do not retain the illicit proceeds of their corruption."

At the same time as the DOJ is publicly avowing its efforts to stamp out international corruption and encouraging other nations, such as Russia, to do the same, the DOJ has cast a wide net around the definition of a "foreign official." Not only does the government view that term to include elected officials and political candidates (as specified in the statute), but also officers and employees of state-owned or state-controlled enterprises. In the next few months, at least three U.S. district courts are expected to decide whether the government's expansive interpretation of "foreign official" is overly broad, and ultimately, this controversial question may reach the U.S. Supreme Court. However, unless and until federal appellate courts reign in this broad interpretation and enforcement agenda, the international business community should continue to assume that (1) dealings with officers and directors of state-owned or state-controlled enterprises, as well as with foreign elected officials and candidates, will be scrutinized under the FCPA; and (2) the U.S. government will continue to aggressively investigate and prosecute companies and individuals suspected of foreign corruption, including foreign officials who are suspected of laundering the proceeds of bribes through the United States.

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