Global Anti-Bribery Compliance: The Travel Act

In addition to the FCPA, another statute, 18 U.S.C. § 1952, may be applicable to a situation involving foreign bribery.  This is commonly referred to as the “Travel Act.”  It is often charged in combination with a violation of the FCPA’s anti-bribery provisions, particularly when there may be a question as to whether the intended recipient of an improper inducement is an official of a foreign government or an official of an entity that is not part of a government.1  But unlike the FCPA, the Travel Act may apply directly to “private” or what is often referred to as commercial bribery.

The jurisdictional reach of the Travel Act is more limited than the FCPA’s anti-bribery provisions.  Nationality jurisdiction does not apply.  However, as long as there is sufficient territorial nexus to the United States and to the state where the underlying violation is alleged to have occurred, the Travel Act may apply extraterritoriality.  Like the FCPA’s anti-bribery provisions, the same basic considerations apply to establishing territorial jurisdiction of the Travel Act to activities taking place solely within the United States as they do to establishing jurisdiction to activities that may, in part, transpire outside of the United States.

Jurisdiction under the Travel Act is explicitly invoked by “travel[] in interstate or foreign commerce” or the use of “the mail or any facility in interstate or foreign commerce.”  Similarly, much like the FCPA’s anti-bribery provisions, jurisdiction under the Travel Act may apply to anyone outside the territory of the United States who causes someone to travel in interstate commerce in the United States or foreign commerce with the United States or causes someone to use the U.S. mails or any facility of such interstate or foreign commerce.

As a predicate to a Travel Act conviction, absent a distinct violation of a law of the United States, the defendants must have engaged in some form of unlawful activity prohibited by the law of the state where the unlawful activity is alleged to have occurred.  As a result, there must also be a sufficient territorial nexus to the state where the underlying violation of its laws is alleged.

Most states now have in one form or another private or commercial bribery statutes.2  This is precisely why companies need to extend their compliance policies to address private or commercial bribery, which may include “kickbacks.” Any company subject to the FCPA’s internal controls provisions should have in place compliance policies and procedures designed to deter and detect private or commercial bribery.  Even for those companies not subject to the internal controls provisions of the FCPA, compliance policies and procedures should extend to detecting any form of bribery, whether it be public or private in nature.

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1In United States v. Harder, Superseding Indictment, United States v. Harder, No. 2:15-cr-0001-PD (E.D. Pa., Dec. 15, 2015), ECF No. 23, violations of the FCPA’s anti-bribery provisions were charged in conjunction with violations of the Travel Act for commercial bribery as well as international money laundering were charged against a U.S. resident for the payment of bribes for the benefit of a senior official of the European Bank for Reconstruction and Development (“EBRD”), a “public international organization” under the FCPA.  The bribes were paid to the sister of a EBRD’s official for his influence in affecting certain EBRD procurement decisions.

2E.g., Ala. Code § 13A-11-120 (2016); Alaska Stat. § 11.46.670 (2016); Ariz. Rev. Stat. Ann. § 13-2605 (2016); Cal. Penal Code § 641.3 (West 2015); Colo. Rev. Stat. § 18-5-401 (2016); Conn. Gen. Stat. §§ 53a-160, 53a-161 (2016); Del. Code Ann. til. 11, § 881 (2016); Fla. Stat. § 838.16 (2015); Haw. Rev. Stat. § 708-880 (2016); Ill. Comp. Stat. § 29a (2016); Iowa Code § 722.10 (2015); Ky. Rev. Stat. Ann. § 518.020 (West 2016); La. Rev. Stat. Ann. § 14.73 (2016); Mass. Gen. L. ch. 271, § 39 (2015); Me. Rev. Stat. tit. 17-A, § 904 (2016); Mich. Comp. Laws § 750.125 (2016); Miss. Code Ann. 97-11-11, 97-11-13; Mo. Rev. Stat. § 570.150 (2016); Neb. Rev. Stat. 28-710 (2016); Nev. Rev. Stat. § 207.295; N.H. Rev. Stat. Ann. § 638:7 (2016); N.J. Stat. Ann. § 2C:21-10 (2016); N.M. Stat. Ann. §§ 30-41-1, 30-41-2 (2015); N.Y. Penal Law §§ 180.00-180.03 (Consol. 2016); N.D. Cent. Code § 12.1-12-08 (2016); Okla. Stat. til. 21, § 380 (2016); 18 Pa. Cons. Stat. § 4108 (2016); R.I. Gen. Laws §§ 11-7-3, 11-7-4 (2016); S.C. Code Ann. § 16-17-540 (2016); S.D. Codified Laws §§ 22-43-1, 22-43-2 (2016); Tex. Penal Code Ann. § 32.43 (West 2016); Va. Code Ann. § 18.2-444 (2016); Vt. Stat. Ann. tit. 13, § 1108 (2016); Wash. Rev. Code § 9A.68.060 (2016); Wis. Stat. § 134.05 (2016).

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