FCPA Compliance: Avoiding Claims of Retaliation

From the perspective of addressing FCPA compliance concerns, special care needs to be exercised in the handling and treatment of allegations of possible violations of U.S. law.  This is particularly critical and sensitive issue for international lawyers, in-house counsel, consultants and others providing advice in foreign settings to corporate officials.  At times, the source of allegations can be difficult employees with ulterior motives.

Under U.S. law, it is a criminal offense for an individual or entity to knowingly retaliate against any person for providing information relating to the commission or possible commission of a federal offense.1  The penalties can be severe. But it is critical to fully understand the breadth of retaliation that is subject to serious criminal sanctions.  “Retaliation” can consist of “interfering with the lawful employment or livelihood” of the informant.2  Anyone who interferes with the lawful employment or livelihood of an informant can be subject to a term of imprisonment of ten years.3

Of added significance is the provision making the application of the retaliation statute expressly extraterritorial.4  With there also being a specific provisions for a conspiracy to violate the statute,5 severe criminal sanctions can be imposed on an individual or entity for taking action in foreign settings against a whistleblower or anyone seeking to cooperate with a federal investigation. The fact that the individual furnishing the information is located in a foreign setting or is not a U.S. citizen is not an impediment to prosecution.

118 U.S.C. § 1513(e).

2Id.

3Id., § 1513(e).

4Id., § 1513(d) (“There is extraterritorial Federal jurisdiction over an offense under this section.”).

5Id., § 1513(f).

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