U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. §§ 78dd-1, et seq.) with the DOJ/SEC Resource Guide, Second Edition (2020)

Why does it matter?

FCPA liability reaches a parent company for payments made through subsidiaries, agents and joint venture partners, and the accounting provisions apply to every issuer whether or not a bribe is ever paid, so an inaccurate ledger entry or a missing control can itself be a violation of § 78m(b)(2). The June 9, 2025 guidelines narrow where the Department looks, toward cartels and transnational criminal organizations, harm to identifiable U.S. companies, national security sectors and serious misconduct with strong indicia of corrupt intent, but they leave the statute, the SEC's civil authority and the books-and-records duties untouched. A company's program is judged under the Resource Guide's hallmarks and the DOJ Evaluation of Corporate Compliance Programs.

Key benefits include:

• Clear statutory lines

The anti-bribery elements, the routine governmental action exception in § 78dd-1(b) and the affirmative defenses in § 78dd-1(c) give the program concrete tests for gifts, hospitality and third-party payments.

• Accounting discipline

§ 78m(b)(2)(A) and (B) require books and records in reasonable detail and internal accounting controls that give reasonable assurances, the same controls that serve financial reporting.

• Third-party coverage

Payments made indirectly through intermediaries fall within § 78dd-1(a)(3) when the company knows that all or part of the value will go to a foreign official.

• A documented program as evidence

The Resource Guide's Hallmarks of Effective Compliance Programs and the DOJ ECCP are the benchmarks prosecutors and the SEC apply to a program.

• Enforcement focus known in advance

The 2025 guidelines name the factors and the authorization rule, so a company can see which conduct the Department prioritizes.

How does it work?

The anti-bribery provisions make it unlawful for an issuer, a domestic concern or a person acting within U.S. territory to use the mails or any means of interstate commerce corruptly in furtherance of an offer, payment, promise or authorization of anything of value to a foreign official, party or candidate, to influence an official act, induce a breach of lawful duty or secure an improper advantage in order to obtain or retain business (§ 78dd-1(a)). § 78dd-1(f) defines foreign official to include officers and employees of a foreign government, agency or instrumentality and of a public international organization. The 1998 amendments added § 78dd-1(g) for acts abroad by U.S. issuers and added § 78dd-3.

The accounting provisions apply to every issuer with securities registered under § 78l or reporting under § 78o(d). § 78m(b)(2)(A) requires books, records and accounts that in reasonable detail accurately and fairly reflect transactions and dispositions of assets; § 78m(b)(2)(B) requires internal accounting controls sufficient to provide reasonable assurances that transactions are executed as authorized and recorded to permit proper financial statements and accountability for assets. § 78m(b)(7) sets reasonable assurances and reasonable detail at the level that would satisfy prudent officials in the conduct of their own affairs.

The DOJ and SEC Resource Guide, Second Edition (July 2020), explains the provisions and lists the Hallmarks of Effective Compliance Programs: commitment from senior management and a clearly articulated policy against corruption; code of conduct and compliance policies and procedures; oversight, autonomy and resources; risk assessment; training and continuing advice; incentives and disciplinary measures; third-party due diligence and payments; confidential reporting and internal investigation; continuous improvement through periodic testing and review; pre-acquisition due diligence and post-acquisition integration; and investigation, analysis and remediation of misconduct.

The Deputy Attorney General's memorandum of June 9, 2025 directs prosecutors to focus on individuals who engaged in criminal misconduct, to proceed expeditiously and to consider collateral consequences throughout an investigation. Part I sets four factors: (A) association with cartels or transnational criminal organizations, their money launderers or officials they have bribed; (B) deprivation of identifiable U.S. entities of fair access to compete, or economic injury to them; (C) harm to U.S. national security through bribery involving key infrastructure or assets; and (D) serious misconduct with strong indicia of corrupt intent rather than routine business practices or low-dollar courtesies. Part II preserves the Principles of Federal Prosecution; Part III applies the guidelines to all current and future matters.

Key Elements

• Anti-bribery provisions (§§ 78dd-1 to 78dd-3)

Prohibit corrupt offers, payments, promises or authorizations of anything of value to a foreign official to obtain or retain business, with § 78dd-1 for issuers, § 78dd-2 for domestic concerns and § 78dd-3 for persons acting in U.S. territory.

• Exception and affirmative defenses (§ 78dd-1(b) and (c))

Facilitating or expediting payments for routine governmental action are excepted; payments lawful under the foreign country's written law and reasonable and bona fide expenditures are affirmative defenses.

• Books and records (§ 78m(b)(2)(A))

Issuers keep books, records and accounts that in reasonable detail accurately and fairly reflect transactions and dispositions of assets.

• Internal accounting controls (§ 78m(b)(2)(B))

A system sufficient to provide reasonable assurances over authorization of transactions, recording, access to assets and periodic reconciliation.

• 2025 enforcement guidelines

Authorization of new matters by the Assistant Attorney General for the Criminal Division or a more senior official, and the four factors in Part I.A to I.D of the June 9, 2025 memorandum.

• Demand side: FEPA (18 U.S.C. § 1352)

Makes it unlawful for a foreign official to corruptly demand, seek, receive or accept anything of value from an issuer, domestic concern or person covered by the FCPA; enforced by the DOJ only.

• Resource Guide hallmarks

The DOJ and SEC description of an effective compliance program, from senior management commitment to investigation, analysis and remediation of misconduct.

What does it cover?

The anti-bribery provisions apply to issuers with securities registered in the United States or reporting to the SEC, including foreign issuers, to domestic concerns, meaning U.S. citizens, nationals and residents and businesses organized under U.S. law or with a principal place of business in the United States, and to any other person who acts in furtherance of a corrupt payment while in U.S. territory, together with their officers, directors, employees, agents and stockholders acting on their behalf. The accounting provisions apply to issuers (§ 78m(b)(2)). Compliance, legal, finance, internal audit and procurement functions implement the Act wherever the business deals with government customers, licenses, permits or state-owned enterprises abroad.

What are its objectives?

Congress enacted the FCPA to make the bribery of foreign officials unlawful and to require issuers to keep accurate books and adequate internal accounting controls; the 2025 guidelines restate how the Department pursues those aims.

Prohibit corrupt payments to foreign officials by issuers, domestic concerns and persons acting within U.S. territory (§§ 78dd-1 to 78dd-3).

Require issuers to keep accurate books and records and adequate internal accounting controls that operate in tandem with the anti-bribery provisions (§ 78m(b)(2)).

Reach conduct carried out through subsidiaries, agents and other third parties where the company knows the value will reach a foreign official.

Permit facilitating payments for routine governmental action and recognize the written-law and bona fide expenditure defenses (§ 78dd-1(b) and (c)).

Focus enforcement, under the June 9, 2025 guidelines, on individual misconduct and on the four factors concerning cartels, fair competition, national security and serious misconduct.

Address the demand side of foreign bribery through the Foreign Extortion Prevention Act (18 U.S.C. § 1352).

Framework in Context

The FCPA and the UK Bribery Act 2010 are the two principal extraterritorial anti-bribery laws, and the Resource Guide incorporates the Sentencing Guidelines' § 8B2.1 and the DOJ Evaluation of Corporate Compliance Programs in describing effective programs. Its accounting provisions overlap with SOX internal control over financial reporting and COSO, and multinational programs map it to ISO 37001:2016 and ISO 37301:2021 and to the national laws implementing the OECD Anti-Bribery Convention. FEPA (18 U.S.C. § 1352) complements it on the demand side, and the 2025 guidelines direct prosecutors to consider whether an appropriate foreign authority is willing and able to prosecute the same conduct.

Common Framework Mappings

Companies map the FCPA's anti-bribery and accounting provisions and the Resource Guide hallmarks to the compliance benchmarks, control frameworks and other anti-corruption laws they must satisfy so one program and one evidence base serve them all.

Mapped frameworks include:

UK Bribery Act 2010

DOJ ECCP

USSG §8B2.1

SOX

COSO IC 2013

COSO ERM 2017

ISO 31000:2018

OCEG Red Book 3.5

IIA Three Lines Model

ISO 37001:2016

ISO 37301:2021

OECD Anti-Bribery Convention