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whether they utilize the US. mails or a means or instrumen- tality of interstate commerce.” Thus, for example, a foreign national who attends a meeting in the United States that fur- thers a foreign bribery scheme may be subject to prosecution, as may any co-conspirators, even if they did not themselves attend the meeting, A foreign national or company may also be liable under the FCPA if it aids and abets, conspires with, or acts as an agent of an issuer or domestic concern, regardless of whether the foreign national or company itself takes any action in the United States. In addition, under the “alternative jurisdiction” pro- vision of the FCPA enacted in 1998, U.S. companies or persons may be subject to the anti-bribery provisions even if they act outside the United States.‘' The 1998 amend- ments to the FCPA expanded the jurisdictional coverage of the Act by establishing an alternative basis for jurisdiction, that is, jurisdiction based on the nationality principle. In particular, the 1998 amendments removed the requirement that there be a use of interstate commerce (¢.g., wire, email, telephone call) for acts in furtherance of a corrupt payment The FCPA: Anti-Bribery Provisions to a foreign official by U.S. companies and persons occur- ring wholly outside of the United States. What Is Covered?—The Business Purpose Test The FCPA applies only to payments intended to induce or influence a foreign official to use his or her posi- tion “in order to assist ... in obtaining or retaining business for or with, or directing business to, any person.” This requirement is known as the “business purpose test” and is broadly interpreted. Not surprisingly, many enforcement actions involve bribes to obtain or retain government contracts.“ The FCPA also prohibits bribes in the conduct of business or Hypothetical: FCPA Jurisdiction Company A, a Delaware company with its principal place of business in New York, is a large energy company that operates globally, including in a number of countries that have a high risk of corruption, such as Foreign Country. Company A's shares are listed on a national U.S. stock exchange. Company A enters into an agreement with a European company (EuroCo) to submit a joint bid to the Oil Ministry to build a refinery in Foreign Country. EuroCo is not an issuer. Executives of Company A and EuroCo meet in New York to discuss how to win the bid and decide to hire a purported third-party consultant (Intermediary) and have him use part of his “commission” to bribe high-ranking officials within the Oil Ministry. Intermediary meets with executives at Company A and EuroCo in New York to finalize the scheme. Eventually, millions of dollars in bribes are funneled from the United States and Europe through Intermediary to high-ranking officials at the Oil Ministry, and Company A and EuroCo win the contract. A few years later, a front page article alleging that the contract was procured through bribery appears in Foreign Country, and DOJ and SEC begin investigating whether the FCPA was violated. Based on these facts, which entities fall within the FCPA’s jurisdiction? All of the entities easily fall within the FCPA’s jurisdiction. Company A is both an “issuer” and a “domestic concern” under the FCPA, and Intermediary is an “agent” of Company A. EuroCo and Intermediary are also subject to the FCPA’s territorial jurisdiction provision based on their conduct while in the United States. Moreover, even if EuroCo and Intermediary had never taken any actions in the territory of the United States, they can still be subject to jurisdiction under a traditional application of conspiracy law and may be subject to substantive FCPA charges under Pinkerton liability, namely, being liable for the reasonably foreseeable substantive FCPA crimes committed by a co-conspirator in furtherance of the conspiracy. HOUSE_OVERSIGHT_022514