United States - Global bribery offenses guide

What is the legal framework governing bribery in the US?

The US Foreign Corrupt Practices Act of 1977, as amended, (the FCPA) (15 U.S.C. 78dd-1 et seq), provides criminal and civil liability for companies and individuals for bribery involving non-US government officials. The FCPA has two sets of provisions:

• The Anti-Bribery Provisions make it a criminal and civil offense to offer or provide anything of value to a foreign official as an inducement or to gain advantage in obtaining or retaining business, and
• The Accounting Provisions require issuers to make and keep accurate books and records and devise and maintain an adequate system of internal accounting controls.

The US Department of Justice (DOJ) and Securities and Exchange Commission (SEC) enforce the FCPA, and they have issued extensive guidance regarding their interpretation of the scope and application of the FCPA (See e.g., FCPA Resource Guide, United States Justice Manual, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)). Although this guidance is not legally dispositive, it influences which enforcement cases DOJ and SEC investigate and pursue, and the vast majority of FCPA cases conclude through negotiated resolutions between the subject(s) of the investigation and the DOJ and/or SEC. For example, in June 2025, the DOJ announced factors it will prioritize when deciding to investigate and pursue an enforcement action under the FCPA. These priorities include conduct involving cartels and other transnational criminal organizations, impacts to US economic interests and national security, and serious misconduct.

The US also has federal and state criminal laws that address bribery and corruption of US, state, and local government officials. Those provisions are not detailed here. As the bribery statute most relevant to international companies, the following sections focus on the FCPA.

 

What constitutes a bribe?

The Bribery Provisions encompass offers, promises, gifts, and payments of anything of value, including currency, gifts, travel, entertainment, charitable donations, food, physical items, services, loans, and offers of employment.

 

What are the principal offenses under this legal framework?

Principal offenses under the FCPA include violations of the Anti-Bribery Provisions and the Accounting Provisions. The primary elements of a violation of the Anti-Bribery Provisions are:

• an offer, payment, promise, gift, or authorization of money or anything of value,
• to a foreign official, political party or official, or candidate,
• for a corrupt purpose.

A foreign official includes any officer, employee, or other person acting on behalf of a foreign government, department, agency, foreign state-owned entity, public international organization like the UN or the World Bank, or instrumentality of a foreign government.

A corrupt purpose is the purpose to (1) influence any act or decision of a foreign official in his official capacity, (2) induce any act in violation of the lawful duty, (3) secure any improper advantage; or (4) induce foreign official to use his influence with a foreign government or instrumentality to influence any act or decision of such government or instrumentality, to assist in obtaining or retaining business.

It also is a violation to provide anything of value to an intermediary that knows some portion of the value is intended for a foreign official, political party/official, or candidate.

The Accounting Provisions are violated when an issuer fails to:

• make and keep books and records that accurately and fairly reflect the transactions of the corporation, or
• devise and maintain an adequate system of internal accounting controls.

The Accounting Provisions can be violated in the absence of a bribe or other improper payments, but in practice, charges involving only a violation of the Accounting Provisions have some indicia of corrupt activity or improper payments.

 

What is the jurisdictional reach of the legal framework?

All US persons (domestic concerns) and issuers of securities listed on a US exchange are subject to the Anti-Bribery Provisions, as are foreign issuers of securities listed on a US exchange (e.g., ADRs). US persons are liable under the FCPA for conduct that occurs wholly outside the US.

The Anti-Bribery Provisions also apply to foreign firms and persons who cause, directly or through agents, an act in furtherance of such a corrupt payment to take place within the territory of the United States (a US nexus). The full extent of DOJ’s extra-territorial jurisdiction over non-US persons remains unresolved, but DOJ broadly interprets its jurisdiction to criminally prosecute foreign companies and individuals under the FCPA who commit acts in the US in furtherance of a corrupt payment.

Only issuers, publicly traded US companies and foreign companies with securities listed on a US exchange, are subject to the Accounting Provisions.

 

Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

The FCPA applies to both companies and individuals subject to US jurisdiction. This means that company directors, officers, employees and their agents can face personal liability for violating the FCPAs Anti-Bribery and/or Accounting Provisions.

The FCPA does not provide liability for government officials that solicit and/ or receive bribes. Instead, US enforcement authorities rely on other criminal statutes to prosecute  recipients of bribes, such as money laundering and wire fraud statutes. In 2023, the US enacted the Foreign Extortion Prevention Technical Corrections Act (FEPA) (18 U.S.C. § 1352), which makes it a crime for non‑US government officials to demand or receive bribes.

 

Can a parent company be liable for its subsidiary's involvement in bribery?

Yes, US parent companies may be responsible for FCPA violations caused by their domestic or foreign subsidiaries (as well as other third parties), primarily through traditional agency principles. US enforcement authorities also can use theories of aiding and abetting and conspiracy to hold a parent company liable for the actions of a subsidiary or other affiliated entity.

 

Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

The Anti-Bribery Provisions specifically exempt facilitation payments made to expedite or secure the performance of a routine governmental action. However, DOJ and SEC historically have narrowly interpreted routine governmental action.

Despite this exemption, US enforcement authorities may hold publicly traded companies liable under the Accounting Provisions if a company  fails to accurately record facilitation payments in their books and records. DOJ and SEC assert that the exemption for facilitating payments under the Anti-Bribery Provisions does not exempt public companies from the requirement of reporting those payments accurately.

 

Does the legal framework restrict political and charitable contributions?

Political or charitable contributions are not exempt from the FCPA. Political and charitable contributions are assessed as any other payment or transfer of value based on the specific facts and circumstances, and such contributions have formed the basis for prior enforcement actions.

 

Does the legal framework place restrictions on corporate hospitality?

The FCPA itself does not contain a specific cap or prohibition on corporate hospitality, but corporate hospitality can support a violation of the FCPA as a thing of value. US enforcement authorities will consider the circumstances of any hospitality that is offered and how those circumstances support a potential violation, including any corrupt purpose for such hospitality. Factors that may be considered include:

• the lavishness and amount of any hospitality, including in relationship to the position and seniority of the recipient;
• the timing of the hospitality, such as its proximity to a deadline or decision that could impact the offeror’s business;
• the ability of the recipient to influence decisions impacting the offeror’s business;
• the frequency of the hospitality;
• the nature of the hospitality and its relationship to a legitimate business purpose; and
• the terms of the hospitality and how payment is made, recorded, and documented.

 

Are there any defenses for bribery offenses?

The FCPA contains two affirmative defenses to its anti-bribery prohibitions for (i) payments permitted under local written law (local law exception), and (ii) reasonable and bona fide expenses.

Companies rarely rely upon the local law exception because it is narrowly interpreted. Specifically, that defense requires the company to demonstrate that the provision of the payment was lawful under the written laws and regulations of the recipient official's country at the time of the offense. It is not sufficient  that a foreign country refuses to enforce its anti-corruption laws.

The second affirmative defense permits persons to incur travel and lodging expenditures for the benefit of foreign officials if those expenses are (i) reasonable, (ii) bona fide, and (iii) directly related to the promotion, demonstration, or explanation of products or services or the execution or performance of a contract with a non-US government or agency. DOJ and SEC do not consider expenses for primarily personal entertainment purposes to be bona fide expenses. Additionally, any expenditures must be properly recorded in the company's books and records.

 

What are the key regulatory or enforcement bodies with regard to bribery?

The principal government agencies responsible for FCPA enforcement are the DOJ and SEC. Other federal law enforcement often assist in FCPA investigations, including the Federal Bureau of Investigation, Postal Inspection Service, and  Internal Revenue Service. DOJ and SEC also frequently collaborate with foreign regulators.

 

What are the legal consequences of being found guilty of bribery offenses?

Violations can result in large fines, penalties, profit disgorgement, imprisonment, suspension/debarment from government contracting, the loss of export privileges, the appointment of compliance monitors, and other consequences. Penalties and disgorgement can be substantial, and some companies have billions of dollars in penalties and disgorgement to the US government and foreign regulators.

In FCPA cases, US prosecutors also have been known to charge defendants for other offenses, such as wire fraud, money laundering, sanctions, and other related violations, that bring additional penalties, prison time, and other legal consequences.

Finally, company shareholders may bring derivative suits on the basis of an FCPA violation.

 

Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

Yes, bribery offenses can be settled through a non-prosecution agreement (NPA) or a DPA. Furthermore, companies can receive declinations from DOJ through appropriate self-reporting of potential violations and cooperation with DOJ investigations. Updated enforcement guidance released by DOJ in 2025 provides for mandatory declinations if they meet certain conditions.