So, we have covered the Foreign Corrupt Practices Act's
("FCPA") scope, but the FCPA anti-bribery provisions
also contain certain exceptions and affirmative defenses. These
exceptions and affirmative defenses attempt to carve out legitimate
payments to foreign officials, so the FCPA does not unreasonably
hamper international business. Be wary, however, because
prosecutors narrowly interpret these exceptions and affirmative
defenses. Moreover, as most FCPA cases settle, the prosecutor's
perspective will ultimately drive the settlement negotiations and
the prosecutor may have a different view of an automotive
company's payments to the foreign officials.
As an important point, these "exceptions and affirmative
defenses" are really affirmative defenses. Simply put, if the
government accuses a company or individual with violating the FCPA,
the burden is on the defendant to prove one of the following
exceptions or affirmative defenses apply.
