FCPA Defense: Foreign Corrupt Practices Act Charges Explained

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

The Foreign Corrupt Practices Act is one of the most consequential statutes in federal white-collar law, and it reaches companies and executives whose only connection to a problem may be a payment made by an agent on another continent. If you or your company faces FCPA scrutiny, put an FCPA lawyer between you and the government from the first contact, because these cases combine criminal exposure, parallel SEC enforcement, and complex cross-border facts. At Elizabeth Franklin-Best, P.C., we defend companies and individuals against FCPA allegations.

The FCPA, codified at 15 U.S.C. § 78dd-1 and related provisions, has two distinct parts: anti-bribery rules that prohibit corrupt payments to foreign officials, and accounting rules that govern the books, records, and internal controls of public companies. The Department of Justice and the Securities and Exchange Commission enforce it jointly, and the resulting exposure can be enormous.

FCPA work demands a lawyer comfortable with statutes that change less than the policies enforcing them — a distinction that has rarely mattered more than it does after the 2025 enforcement overhaul. Elizabeth Franklin-Best, the principal attorney of our firm, pairs a Chambers USA 2026 ranking in Litigation: White-Collar Crime & Government Investigations with 2026 Best Lawyers in America recognition in Appellate Practice. In every FCPA matter, we map the elements of each provision against the facts — corrupt payment, business nexus, knowledge, intent — and against the current enforcement priorities. Begin with a paid, one-hour initial consultation so we can locate your matter on that map.

FCPA: Quick Answer

Question	Answer
What is the FCPA?	The Foreign Corrupt Practices Act — a federal law prohibiting corrupt payments to foreign officials and requiring accurate books, records, and internal controls for public companies.
What must the government prove?	For anti-bribery, a corrupt payment or offer of value to a foreign official, with intent to obtain or retain business — the “business nexus.”
What penalties can apply?	Anti-bribery: individuals up to 5 years and $250,000; accounting violations: individuals up to 20 years and $5,000,000. Corporate fines reach into the millions.
Who enforces the FCPA?	The Department of Justice handles criminal enforcement; the SEC handles civil enforcement against issuers — often in parallel.
Is the FCPA still enforced?	Yes. After a 180-day pause ordered in February 2025, DOJ enforcement resumed in June 2025 under guidelines with narrowed priorities — the statute itself is unchanged.
How do we approach defense?	Element by element and priority by priority — our paid, one-hour initial consultation measures your facts against both the statute and the current DOJ enforcement factors.

Key Takeaways

• The FCPA has two parts: anti-bribery provisions and accounting (books-and-records and internal-controls) provisions.
• The anti-bribery provisions prohibit corrupt payments of anything of value to foreign officials to obtain or retain business.
• The “business nexus” — that the payment was intended to help obtain or retain business — is a required element.
• The statute also reaches payments to third parties made while knowing the money will reach a foreign official.
• A facilitating-payment exception covers small payments for routine governmental action; affirmative defenses cover lawful and bona fide promotional payments.
• The accounting provisions apply to public-company issuers and require accurate records and adequate internal controls.
• The DOJ and SEC enforce the FCPA jointly, and corporate matters are often resolved through negotiated agreements.
• Executive Order 14209 (February 2025) paused new DOJ FCPA enforcement; the June 2025 DOJ guidelines resumed it with narrowed priorities — cartel links, harm to identifiable U.S. companies, national security, and serious individual misconduct.
• The Foreign Extortion Prevention Act now criminalizes the demand side of foreign bribery — a foreign official’s corrupt demand for payment.
• Penalties are severe — up to 5 years for anti-bribery and up to 20 years for willful accounting violations — and a company’s voluntary disclosure and cooperation can affect the outcome.

What Is the Foreign Corrupt Practices Act?

The Foreign Corrupt Practices Act, enacted in 1977 after disclosures of widespread corporate payments to foreign officials, is the principal federal law addressing international bribery. It has two distinct components, and understanding the difference between them is essential.

The anti-bribery provisions, codified at 15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3, prohibit corrupt payments to foreign officials to obtain or retain business. They apply to three groups: issuers (companies with securities registered or reporting in the United States), domestic concerns (U.S. businesses and persons), and certain foreign persons and businesses that act in furtherance of a corrupt payment while in the United States.

The accounting provisions, codified at 15 U.S.C. § 78m(b), apply to issuers. They require a company to keep books and records that, in reasonable detail, accurately and fairly reflect its transactions, and to maintain a system of internal accounting controls. These provisions are not limited to bribery — they can be enforced even where no improper payment is proven — and they give the government a powerful, separate tool.

The Anti-Bribery Provisions

The anti-bribery provisions prohibit corruptly using the mail or interstate commerce in furtherance of an offer, payment, promise, or authorization of anything of value to a foreign official — for the purpose of influencing an official act or decision, inducing the official to violate a lawful duty, securing an improper advantage, or inducing the official to use influence with a foreign government — in order to assist in obtaining or retaining business.

Several elements deserve emphasis. “Anything of value” is broad — cash, gifts, travel, entertainment, employment, charitable contributions, and other benefits can qualify. A “foreign official” includes not only government officers and employees but, in many cases, employees of state-owned or state-controlled enterprises. The “corruptly” requirement imports a wrongful, bribe-like intent. And the “business nexus” — that the payment was intended to assist in obtaining or retaining business — is a genuine, required element. The Fifth Circuit read it broadly in United States v. Kay, 359 F.3d 738 (5th Cir. 2004), holding that payments to lower customs duties and taxes could satisfy the nexus because they helped the payor obtain or retain business — but the court was equally clear that the nexus is a real element the government must prove, not a formality that courts will presume.

The statute also reaches indirect payments. It is a violation to give money or value to a third party — an agent, consultant, intermediary, or joint-venture partner — while knowing that all or a portion of it will be offered or given to a foreign official. That “knowing” standard, and how it is proven, is often the central battleground in cases built on the conduct of agents. The statute’s reach over foreign defendants also has limits: in United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018), the Second Circuit held that a foreign national who falls outside the FCPA’s enumerated categories cannot be swept in through conspiracy or aiding-and-abetting liability unless the government proves he acted as an agent of a U.S. issuer or domestic concern.

Applied Insight: Many FCPA cases turn on the conduct of a local agent or intermediary the company did not directly control. The defense often focuses on the “knowing” element — whether the company or executive actually knew, or consciously avoided knowing, that funds would reach an official. Genuine, documented due diligence and compliance oversight are powerful evidence against that knowledge.

The Accounting Provisions

The accounting provisions apply to issuers and have two parts. The books-and-records requirement obligates an issuer to make and keep books, records, and accounts that, in reasonable detail, accurately and fairly reflect its transactions and the disposition of its assets. The internal-controls requirement obligates an issuer to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are properly authorized and recorded.

These provisions are powerful for the government precisely because they do not require proof of a bribe. A bribe is almost always mischaracterized in a company’s books — recorded as a commission, a consulting fee, or a marketing expense — and that mischaracterization is itself a books-and-records problem. The internal-controls provision lets the government fault a company for a system that failed to catch improper payments. The SEC frequently resolves matters on accounting theories alone.

Criminal liability under the accounting provisions is reserved for knowing conduct — knowingly falsifying books and records, or knowingly circumventing or failing to implement internal controls. The line between a knowing violation and an ordinary accounting failure or control weakness is a critical one for the defense.

Exceptions and Affirmative Defenses

The FCPA contains built-in limits that are part of the statute itself, not just defense arguments.

• The facilitating-payment exception. The anti-bribery provisions do not apply to small “facilitating” or “expediting” payments made to secure the performance of a routine governmental action — a ministerial act an official is already supposed to perform, such as processing paperwork or providing routine services. This exception is narrow and frequently misunderstood, but it is real.
• The local-law affirmative defense. It is an affirmative defense that the payment was lawful under the written laws and regulations of the foreign official’s country.
• The bona fide expenditure affirmative defense. It is an affirmative defense that the payment was a reasonable and bona fide expenditure — such as travel and lodging — directly related to the promotion or demonstration of products or services, or the execution or performance of a contract.

These provisions must be applied carefully. The facilitating-payment exception is far narrower than many assume, and the affirmative defenses place a burden on the defendant. But where the facts genuinely fit, each is a complete answer to an anti-bribery theory.

Applied Insight: The line between a lawful facilitating payment and an unlawful bribe is one of the most litigated in FCPA practice. The exception turns on whether the official action sought was genuinely routine and non-discretionary. Where the payment was meant to influence a discretionary decision — an award, an approval, a favorable ruling — the exception does not apply, and the analysis must be honest about that.

Penalties for FCPA Violations

FCPA penalties are severe and vary by provision. For criminal violations of the anti-bribery provisions, an individual faces up to 5 years in prison and a fine of up to $250,000, and a business entity faces a fine of up to $2,000,000 per violation. For willful violations of the accounting provisions, an individual faces up to 20 years and a fine of up to $5,000,000, and an entity faces a fine of up to $25,000,000.

These statutory figures are only part of the picture. Under the federal Alternative Fines Act, a fine can be increased to twice the gross gain or loss from the offense — which, in a significant corporate matter, can produce penalties far larger than the statutory maximums. The SEC can also obtain disgorgement of the profits attributable to the misconduct, civil penalties, and injunctive relief. Forfeiture is common, and the costs of remediation, monitorships, and the investigation itself are substantial.

Corporate FCPA matters are frequently resolved through negotiated agreements — deferred prosecution agreements or non-prosecution agreements — whose terms are heavily influenced by whether the company voluntarily disclosed the conduct, cooperated, and remediated its compliance program. For individuals, the advisory United States Sentencing Guidelines drive the federal sentence, with the value of the improper payments and the benefit obtained as central factors. Because the FCPA’s anti-bribery offense is a form of corruption charge, these prosecutions draw on the same investigative playbook as domestic bribery cases.

Parallel DOJ and SEC Enforcement

An FCPA matter is rarely a single proceeding. The Department of Justice handles criminal enforcement of both the anti-bribery and the accounting provisions. The Securities and Exchange Commission handles civil enforcement against issuers. The two agencies frequently investigate the same conduct in parallel, share information, and resolve their matters in coordination.

Parallel enforcement creates genuine strategic complexity. Statements and documents produced to one agency can be used by the other. A company’s decisions about voluntary disclosure, cooperation, internal investigation, and remediation affect both tracks at once. And the interests of a company and its individual officers and employees can diverge sharply — a company seeking cooperation credit may be expected to identify culpable individuals. Anyone caught in an FCPA matter needs counsel who can see the whole board.

FCPA Enforcement in 2025 and 2026: The Pause and the New Guidelines

The enforcement landscape shifted abruptly in 2025, and anyone assessing FCPA exposure needs to understand both what changed and what did not. On February 10, 2025, the President signed Executive Order 14209, which directed the Attorney General to pause the initiation of new FCPA investigations and enforcement actions for 180 days (subject to individual exceptions), to review all existing FCPA matters, and to issue updated enforcement guidelines. The order characterized prior enforcement as overexpansive and connected the statute’s application to American economic competitiveness and the President’s foreign-affairs authority.

On June 9, 2025, the Deputy Attorney General issued the resulting Guidelines for Investigations and Enforcement of the FCPA, and enforcement resumed on narrowed terms. Every new FCPA investigation or enforcement action now requires authorization by the Assistant Attorney General for the Criminal Division or a more senior official, and prosecutors weigh a published, non-exhaustive set of factors: a connection to cartels or transnational criminal organizations; deprivation of fair access, or economic injury, to specific and identifiable U.S. companies or individuals; national-security harm from corruption involving defense, intelligence, or critical infrastructure; and serious misconduct bearing strong indicia of corrupt intent tied to particular individuals — substantial bribes, sophisticated concealment, obstruction — rather than routine business practices or low-dollar courtesies. The memorandum also directs prosecutors to focus on individuals, to move expeditiously, to weigh collateral consequences throughout the investigation, and to consider whether a foreign authority is willing and able to prosecute the same conduct.

What has not changed matters just as much. The statute is intact, and a policy memorandum binds no future administration — conduct occurring today can be charged years from now, under different priorities, within the limitations period. The SEC’s civil authority over issuers is not governed by the DOJ memorandum, and foreign anti-corruption authorities continue to police the same conduct under their own laws. For the defense, the guidelines supply concrete, citable arguments — no cartel link, no identifiable U.S. victim, no national-security dimension, no serious individual misconduct — that belong in declination and resolution advocacy. Treating the 2025 shift as a reason to relax compliance, though, would be a serious misreading of a moving landscape.

Applied Insight: Published enforcement factors are advocacy tools. Because every new FCPA matter must be justified to a senior Department official under those criteria, a defense submission organized around the same criteria — demonstrating the absence of a cartel connection, a U.S. victim, or individual corrupt intent — speaks directly to the person who must sign off. Few moments in an FCPA case offer comparable leverage, and this one should be flagged and used early.

FEPA: Congress Adds the Demand Side

While enforcement policy narrowed, the statutory landscape expanded. The Foreign Extortion Prevention Act, 18 U.S.C. § 1352, in its current form since 2024, criminalizes the demand side of foreign bribery: a foreign official who corruptly demands, seeks, receives, or accepts anything of value from an issuer, domestic concern, or other covered person — in connection with obtaining or retaining business — commits a United States crime carrying up to 15 years in prison. Unlike the FCPA, FEPA gives the SEC no enforcement role; it is a criminal statute aimed at the official making the demand.

For U.S. companies and executives, FEPA cuts both ways. It can recast a business as the victim of extortionate demands rather than as a bribery participant — a framing that aligns with the June 2025 guidelines, which direct prosecutors to consider harm to identifiable U.S. entities from officials’ demands. But a FEPA prosecution of a foreign official can also generate evidence, witnesses, and cooperation that reach back to the paying side. How a payment demand was handled, documented, refused, or reported may now shape both halves of the same investigation.

Defenses to FCPA Charges

No two FCPA cases are alike, and no lawyer can promise a result. But several defense themes recur, and matching them to the evidence is the core of building a strategy:

• No corrupt intent. The payment was not made corruptly — it lacked the wrongful, bribe-like intent the statute requires.
• No business nexus. The payment was not intended to assist in obtaining or retaining business.
• No knowledge of a third-party payment. Where an agent is involved, the company or executive did not know, and did not consciously avoid knowing, that funds would reach a foreign official.
• Not a foreign official. The recipient does not fall within the statutory definition of a foreign official.
• Facilitating payment. The payment was a small expediting payment for a genuinely routine, non-discretionary governmental action.
• Affirmative defenses. The payment was lawful under the written law of the foreign country, or was a bona fide, reasonable promotional or contractual expenditure.
• No knowing accounting violation. Any books-and-records or controls issue was not a knowing falsification or knowing circumvention.
• Jurisdiction. The defendant or conduct falls outside the statute’s jurisdictional reach.

The right combination depends entirely on the facts. Our role is to test the government’s proof element by element, develop the favorable record, and press every legitimate defense — during the investigation, in pretrial motions, at trial, and on appeal.

How FCPA Investigations Begin

FCPA investigations arise in several ways: a whistleblower report, a voluntary disclosure by the company itself after an internal audit or compliance review, a competitor’s complaint, a foreign enforcement action, a merger-and-acquisition due diligence finding, or a referral from another investigation. The SEC’s whistleblower program, which rewards reporting, has become a significant source of FCPA cases.

The early decisions in an FCPA matter — particularly whether and how to conduct an internal investigation and whether to make a voluntary disclosure — are consequential and should be made with experienced counsel. For an individual employee or executive caught in a company’s investigation, separate counsel is often essential, because the company’s interests and the individual’s are not the same. Preserve records, do not give an unprepared interview, and consult counsel before responding to any inquiry.

Why Work With Elizabeth Franklin-Best, P.C.

FCPA matters are document-intensive, cross-border, and fought on parallel criminal and civil tracks. They reward defense lawyers who understand both the anti-bribery and the accounting provisions, who can press the business-nexus and knowledge elements, and who can defend an individual whose interests may diverge from a company’s.

Our firm is built for that kind of complexity. Elizabeth Franklin-Best — whose 2026 honors span Best Lawyers in America (Appellate Practice) and Chambers USA (Litigation: White-Collar Crime & Government Investigations) — has handled more than 330 federal proceedings, including over 100 federal appeals, and is admitted to the U.S. Supreme Court and all twelve federal circuits, appearing pro hac vice in district courts wherever an indictment lands. Her book, Reversing Your Criminal Conviction, reflects the record-protective instincts that cross-border cases demand. Christopher Zoukis, our Managing Director, rounds out the team with concentrated knowledge of federal sentencing and the Bureau of Prisons. We represent executives, employees, and companies at every stage of an FCPA matter, with particular attention to individuals whose interests diverge from their employer’s.

In a field reshaped by executive order, we will not pretend to predict outcomes — no honest lawyer can. What we provide is clear-eyed FCPA defense: the elements tested against your facts, the 2025 enforcement factors argued where they help you, and straight answers about risk at every step. If FCPA exposure has entered your world, schedule a paid, one-hour initial consultation and get an accurate picture of where you stand.

Talk With an FCPA Defense Lawyer

The FCPA of 2026 is a statute with old teeth and new rules of engagement — paused, reviewed, and revived with priorities that reward early, well-aimed advocacy. Whether you are an executive facing questions, an employee caught in a corporate investigation, or a company weighing disclosure, the decisions ahead deserve experienced guidance. Reserve a confidential, paid, one-hour initial consultation with our team today.