Defenses to alleged violations of the FCPA, and one very narrow exception to the FPCA

DEFENSES

1. Reasonable entertainment and promotional expenditures
   • Expenditures directly related to:
     i. the promotion, demonstration or explanation of products or services, or
     ii. the performance of a contract with a foreign government or agency.
2. Payments lawful under local written law
   • While it may have been more commonplace in certain international places in the past, bribery is not lawful in any countries today

NARROW EXCEPTION TO THE FCPA

1. Facilitating payments (discouraged)
   • “Facilitating Payments” are small payments to foreign officials in order to expedite or facilitate a foreign official’s performance of:

1) A non-discretionary, “routine governmental action,” that
2) The Foreign Official ordinarily performs, and
3) MIQ is entitled to under the laws of that country

Practice Tip:

1. If a facilitating payment is not allowed under the law of the local country, you should not make or offer such a payment.  The Facilitating Payment Exception of the FCPA does not permit or authorize you to violate any law.
2. Beware of making multiple small payments – the analysis is of “all” such payments made over the duration of the activity.