Incredibly over the last several years, both the DOJ and SEC have been relentless in their aggressive enforcement of the Foreign Corrupt Practices Act. As part of this pursuit, the FCPA’s facilitation payment exception might not be as viable as it once was, thereby, defending these actions has gotten that much more complicated.
Many are suggesting that this exception is no longer a complete defense because there is no objective standard as to what qualifies as a facilitating payment or a routine government action. The FCPA does not apply to such things as payments facilitating or performance easing relating to routine government actions, including, among other things, the issuing of licenses, permits, or processing paperwork. In particular, the SEC does not even consider the facilitation payment exception an affirmative defense. The SEC focuses on what you are paying for, not the verbiage. Further, larger payments make it less likely for anyone to believe it is a facilitating payment, however, not all licenses are the same, some may be more expensive than others. Essentially, confusion reigns.
Nonetheless, companies must have appropriate internal controls to police these types of payments. One aspect of internal controls must be adequate record keeping, ensuring that transactions are properly recorded. As such, companies must be prepared to respond when these inquiries arise.
That may be the only real defense the company may have.