On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (NDAA), which will give the U.S. Department of Justice (DOJ) new tools to prosecute foreign bribery. The Foreign Extortion Prevention Act (FEPA) will amend the domestic bribery statute (18 U.S.C. § 201) to make it a criminal offense for foreign government officials to solicit or receive bribes from any person in the United States, any issuer, or any domestic concern. See H.R. 2670, 118th Cong. § 5101 (2023). This article describes the new law and assesses its likely effects on foreign affairs and anti-bribery and anti-corruption (ABAC) investigations.
HOW FEPA GOES BEYOND THE FCPA
While the Foreign Corrupt Practices Act (FCPA) focuses on the “supply side” of bribery, meaning those who offer or pay bribes, FEPA instead focuses on the “demand side” of bribery by subjecting the recipients of bribes, the payment of which would likely violate the FCPA, to prosecution under 18 U.S.C. § 201. The demand side has been a focus of DOJ policy statements and enforcement efforts. Enforcement, however, generally has been through other laws, like money laundering, wire fraud, and the Travel Act. In parallel to recent DOJ initiatives, the Organization of Economic Cooperation and Development recently called for member states to amend their criminal statutes to prohibit soliciting and obtaining bribes by foreign officials. By enacting FEPA, the United States joins countries like the United Kingdom, Switzerland, and France in making such revisions to its laws.
