What is an affirmative defense, and what are the affirmative defenses built into the Foreign Corrupt Practices Act (FCPA)?
First of all, an affirmative defense is something that limits a defendant’s criminal and/or civil liability, even if the defendant admits to or the government proves the factual allegations. The FCPA has two built-in affirmative defenses: (1) assertion that the payment in question was lawful under the laws of the foreign country; and (2) assertion that “the payment, gift, offer, or promise of anything of value was a bona fide expenditure.” Under all circumstances, you should consider seeking the advice of counsel and/or utilizing the DOJ’s FCPA Opinion Procedure when considering the legality of a payment.
