Can you pay a foreign official to obtain a contract award? Can you pay a foreign official to get a license for a product? How would you know that someone is a foreign official? Can a small business afford to pay over $2,000.000 dollars for violating FCPA, can a business afford to pay $19,000.000 for violating FCPA. Is one willing to spend time in prison for violating FCPA? Can a business afford to pay attorneys to deal with the investigation and defend against DOJ charges? I'm sure the answer is "No". Yet, some small businesses doing business internationally overlook that they must comply with the FCPA and sometimes intentionally take steps that go against the rules.
In my experience, most businesses like to do business on a fair playing field. They like to compete, that's the nature of business, but they like to compete with clean hands. This is true when one does business domestically and when one does business internationally. The level playing field is made uneven when some businesses attempt to get an unfair competitive advantage in the market. This happens also in international markets. This is one reason that the United States has implemented the Foreign Corrupt Practices Act, so that, as AUSA John R. Lausch recently noted, "the global economy remains a fair playing field."
The FCPA was not written, however, only for financial institutions and large companies, though most of the headline news involve these companies. The FCPA, especially its anti-bribery provisions apply to all businesses large and small. It is, therefore, important that small businesses when doing business internationally be mindful of the FCPA. To be clear, not every attorney is knowledgeable about FCPA to assist a business in doing a risk analysis and advising on the potential issues that a business must be aware off and must avoid to do business ethically internationally. Therefore, a small business should engage an attorney that can guide them through this process to make sure there aren't any intentional violations of the FCPA not only by their employees but also by their subsidiaries, suppliers, and third parties.
If you're a small business doing business internationally get in the habit to also do a global risk assessment of your international activities. Call us if you need training or guidance.