October 17, 2011 Articles

Use of the FCPA in State-Law Unfair Competition Cases

There are state and federal civil statutes under which a would-be plaintiff may use a competitor's violation of the FCPA as a predicate act for liability.

By Edward W. Little Jr.

A brief review of the recent financial press reveals that the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd–1, et seq. (the FCPA), is making a comeback of sorts. Enacted in 1977 and designed primarily to combat bribery of foreign officials by U.S. companies, the FCPA has been at the center of federal government prosecutions and investigations into corporate wrongdoing abroad. This includes reports that the Department of Justice or the Securities and Exchange Commission (SEC) may soon begin FCPA investigations into allegations that Rupert Murdoch’s News Corp. bribed British government officials to obtain nonpublic information for use in news reporting. Whether or not one agrees that the United States should police how corporations do business in foreign countries, the FCPA provides a powerful weapon in the prosecutor’s arsenal—and the current administration is not reluctant to use it.

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