-- I agree that the Mexican national who bribes a Mexican official on
behalf of a U.S. Company is subject to the FCPA.  Under the FCPA only a
remote nexus to the U.S. is required for jurisdiction to attach.  The U.S.
Company would also of course be subject to the FCPA.  The Mexican national
has also probably violated a domestic bribery statute in Mexico.  There
was a case involving Syncor whereby a Syncor Taiwanese wholly-owned sub
paid a $2 Mil criminal fine under the FCPA for bribes paid to Taiwanese
officials.

-- On the money, I've always been bemused by the FCPA's grease payments
exception.  The accounting provisions of the FCPA require that these
grease payments be accounted for properly (can you imagine seeing "grease
payments" on a balance sheet!) AND can only be made if legal under local
law.  I have yet to encounter a jurisdiction where grease payments are
legal under local law.

Terence


-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk
[mailto:[log in to unmask]] On Behalf Of Albert D. Spalding, Jr.
Sent: Wednesday, November 02, 2005 11:04 AM
To: [log in to unmask]
Subject: Re: Foreign Corrupt Practices Act question

And then there is the money.  More specifically, the tax deduction (or 
lack thereof).
Irrespective of prosecution under the securities laws. Internal Revenue 
Code section 162 disallows the deductibility of bribes on a U.S. income 
tax return, including, specifically, bribes in violation of the FCPA no 
matter where the bribes took place.

Albert Spalding

Peter W. Schroth wrote:

> There was Dooley v. United Technologies Corp., 803 F. Supp. 428, 440
> (D.D.C. 1992), but the 1998 amendments go even further.  In its current
> form, the FCPA purports to reach foreigners who have virtually any sort
> of contact with the United States in furtherance of a violation of the
> act and U.S. nationals who do anything in furtherance of such a
> violation anywhere in the world.  But don't you think this raises some
> due process problems, such as minimum contacts (International Shoe Co.
> v. State of Washington, 326 U.S. 310, 316 (1945), Burger King Corp. v.
> Rudzewick, 471 U.S. 462, 474 (1985)) and reasonable anticipation of
> being haled into court in the U.S. (World-Wide Volkswagen Corp. v.
> Woodson, 444 U.S. 286, 297 (1980))?  Article 5 of the OECD Convention
> might help a little as to absent nationals, but not absent
non-nationals.
>
> As to the practicalities of physical control over the defendants,
> however, the government can just hire some Mexicans to kidnap them and
> bring them back as far as El Paso.  Sosa v. Alvarez-Machain, 124 S.Ct.
> 2739, 2761-62 (2004).
>
> Peter W. Schroth
>
>
>
> Robert Bird wrote:
>
>> A student asked me a question in class about the FCPA which I cannot
>> definitively answer.
>>
>> The FCPA applies to U.S. companies bribing abroad and an amendment
>> extends the FCPA to Non-U.S. citizens acting in the United States.  Is
a
>> foreign agent (say, a Mexican national) who bribes a Mexican official
on
>> behalf of a U.S. firm in Mexico liabile under the FCPA?  Assume that
the
>> Mexican national never enters the United States.  Also, would there be
a
>> jurisdictional problem with prosecuting the Mexican agent?
>>
>> Thanks in advance for you help,
>>
>> Robert
>>
>> Robert C. Bird
>> Assistant Professor
>> University of Connecticut
>>
>>
>>
>>
>
>