FCPA Guidance on Determining Issuer Status and Jurisdiction

How Can | Tell If My Company Is an “Issuer”? # It is listed on a national securities exchange in the United States (either stock or American Depository Receipts); or = The company’s stock trades in the over-the- counter market in the United States and the company is required to file SEC reports. " To see if your company files SEC reports, go to SEC's website at http://www.sec.gov/edgar/ searchedgar/webusers.htm. issuers. A company is an “issuer” under the FCPA if it has a class of securities registered under Section 12 of the Exchange Act® or is required to file periodic and other reports with SEC under Section 15(d) of the Exchange Act.” In practice, this means that any company with a class of securities listed on a national securities exchange in the United States, or any company with a class of securi- ties quoted in the over-the-counter market in the United States and required to file periodic reports with SEC, is an issuer. A company thus need not be a US. company to be an issuer. Foreign companies with American Depository Receipts that are listed on a US. exchange are also issuers. Asof December 31, 2011, 965 foreign companies were reg- istered with SEC.” Officers, directors, employees, agents, or stockholders acting on behalf of an issuer (whether US. or foreign nationals), and any co-conspirators, also can be prosecuted under the FCPA.® Domestic Concerns—15 U.S.C. § 78dd-2 The FCPA also applies to “domestic concerns.” *! A domestic concern is any individual who isa citizen, national, or resident of the United States, or any corporation, part- nership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that is organized under the laws of the United States or its states, territories, possessions, or commonwealths or that has its principal place of business in the United States.” Officers, directors, employees, agents, or stockholders acting on behalf ofa domestic concern, including foreign nationals or companies, are also covered.” Territorial Jurisdiction—15 U.S.C. § 78dd-3 The FCPA also applies to certain foreign nationals or entities that are not issuers or domestic concerns. Since 1998, the FCPA’s anti-bribery provisions have applied to foreign persons and foreign non-issuer entities that, either directly or through an agent, engage in amy act in further- ance of a corrupt payment (or an offer, promise, or authori- zation to pay) while in the territory of the United States.* Also, officers, directors, employees, agents, or stockholders acting on behalf of such persons or entities may be subject to the FCPA’s anti-bribery prohibitions.*° What Jurisdictional Conduct Triggers the Anti- Bribery Provisions? The FCPA’s anti-bribery provisions can apply to conduct both inside and outside the United States. Issuers and domestic concerns—as well as their officers, directors, employees, agents, or stockholders—may be prosecuted for using the U.S. mails or any means or instrumentality of interstate commerce in furtherance of a corrupt payment to a foreign official. The Act defines “interstate commerce” as “trade, commerce, transportation, or communication among the several States, or between any foreign country and any State or between any State and any place or ship outside thereof ....°°” The term also includes the intrastate use of any interstate means of communication, or any other interstate instrumentality.* Thus, placing a telephone call or sending an e-mail, text message, or fax from, to, or through the United States involves interstate commerce—as does sending a wire transfer from or to a US. bank or otherwise using the US. banking system, or traveling across state bor- ders or internationally to or from the United States. Those who are not issuers or domestic concerns may be prosecuted under the FCPA if they directly, or through an agent, engage in amy act in furtherance of a corrupt pay- ment while in the territory of the United States, regardless of HOUSE_OVERSIGHT_022513