Foreign Business Bribery Prohibition Act of 2016
This bill amends the Foreign Corrupt Practices Act of 1977 (FCPA) to authorize private rights of action against persons that violate the FCPA's anti-bribery provisions, which prohibit giving things of value to foreign officials or political parties for purposes of obtaining or retaining business. A person that violates the FCPA's anti-bribery provisions shall be liable for up to treble damages to a securities issuer, domestic business concern, or U.S. person damaged by the violation.
A plaintiff must prove an FCPA anti-bribery violation by the defendant that: (1) prevented the plaintiff from obtaining or retaining business, and (2) assisted the defendant in obtaining or retaining such business.
[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5438 Introduced in House (IH)]
<DOC>
114th CONGRESS
2d Session
H. R. 5438
To authorize certain private rights of action under the Foreign Corrupt
Practices Act of 1977 for violations that damage certain businesses,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 9, 2016
Mr. Perlmutter introduced the following bill; which was referred to the
Committee on Energy and Commerce, and in addition to the Committees on
the Judiciary and Financial Services, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To authorize certain private rights of action under the Foreign Corrupt
Practices Act of 1977 for violations that damage certain businesses,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Foreign Business Bribery Prohibition
Act of 2016''.
SEC. 2. ACTIONS AUTHORIZED.
(a) Prohibited Foreign Practices by Domestic Concerns.--Section 104
of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2) is
amended by adding at the end the following:
``(j) Private Right of Action Authorized.--
``(1) Authorized plaintiffs.--Any person that violates
subsection (a) shall be liable in an action brought in
accordance with this subsection in any court of competent
jurisdiction to any issuer that is subject to section 30A of
the Securities Exchange Act of 1934, domestic concern that is
subject to this section, or other person that is a United
States person, that is damaged by the violation of subsection
(a) of this section, for damages caused to such issuer,
domestic concern, or other person by the violation.
``(2) Proof of damages.--For purposes of this subsection,
the court may not find for the plaintiff in an action under
this subsection unless the plaintiff alleges and proves that--
``(A) the defendant violated subsection (a); and
``(B) the defendant's violation of subsection (a)--
``(i) prevented the plaintiff from
obtaining or retaining business for or with any
person; and
``(ii) assisted the defendant in obtaining
or retaining such business.
``(3) Measure of damages.--
``(A) In general.--The damages that a plaintiff may
obtain in an action under this subsection may be equal
to the higher of the two following amounts that are
established by the plaintiff's allegations and proof:
``(i) The total amount of the contract or
agreement that the defendant gained in
obtaining or retaining business by means of the
violation of subsection (a).
``(ii) The total amount of the contract or
agreement that the plaintiff failed to gain
because of the defendant's obtaining or
retaining business by means of the violation of
subsection (a).
``(B) Treble damages.--In assessing damages under
subparagraph (A), the court shall enter judgment for
three times the amount determined under clause (i) or
(ii) of such subparagraph (whichever is greater),
together with a reasonable attorney's fee and costs,
for the violation of subsection (a).
``(4) Exception for routine governmental action.--The
exception in subsection (b) shall apply to an action under this
subsection.
``(5) Affirmative defenses.--The affirmative defenses in
subsection (c) shall apply to an action under this subsection.
``(6) Contribution.--Each person who becomes liable to make
payment under this subsection may recover contribution as in
cases of contract from any person who, if joined in the
original suit, would have been liable to make the same payment.
``(7) Statute of limitations.--No action may be maintained
to enforce any liability created under this subsection unless
brought within 3 years after the discovery of the facts
constituting the cause of action and within 6 years after the
cause of action accrued.
``(8) United states person defined.--In this subsection,
the term `United States person' has the meaning given that term
in subsection (i)(2).''.
(b) Prohibited Foreign Practices by Other Persons.--Section 104A of
the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-3) is
amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following:
``(f) Private Right of Action Authorized.--
``(1) Authorized plaintiffs.--Any person that violates
subsection (a) shall be liable in an action brought in
accordance with this subsection in any court of competent
jurisdiction to any issuer that is subject to section 30A of
the Securities Exchange Act of 1934, domestic concern that is
subject to section 104 of this Act, or other person that is a
United States person, that is damaged by the violation of
subsection (a) of this section, for damages caused to such
issuer, domestic concern, or other person by the violation.
``(2) Proof of damages.--For purposes of this subsection,
the court may not find for the plaintiff in an action under
this subsection unless the plaintiff alleges and proves that--
``(A) the defendant violated subsection (a); and
``(B) the defendant's violation of subsection (a)--
``(i) prevented the plaintiff from
obtaining or retaining business for or with any
person; and
``(ii) assisted the defendant in obtaining
or retaining such business.
``(3) Measure of damages.--
``(A) In general.--The damages that a plaintiff may
obtain in an action under this subsection may be equal
to the higher of the two following amounts that are
established by the plaintiff's allegations and proof:
``(i) The total amount of the contract or
agreement that the defendant gained in
obtaining or retaining business by means of the
violation of subsection (a).
``(ii) The total amount of the contract or
agreement that the plaintiff failed to gain
because of the defendant's obtaining or
retaining business by means of the violation of
subsection (a).
``(B) Treble damages.--In assessing damages under
subparagraph (A), the court shall enter judgment for
three times the amount determined under clause (i) or
(ii) of such subparagraph (whichever is greater),
together with a reasonable attorney's fee and costs,
for the violation of subsection (a).
``(4) Exception for routine governmental action.--The
exception in subsection (b) shall apply to an action under this
subsection.
``(5) Affirmative defenses.--The affirmative defenses in
subsection (c) shall apply to an action under this subsection.
``(6) Contribution.--Each person who becomes liable to make
payment under this subsection may recover contribution as in
cases of contract from any person who, if joined in the
original suit, would have been liable to make the same payment.
``(7) Statute of limitations.--No action may be maintained
to enforce any liability created under this subsection unless
brought within 3 years after the discovery of the facts
constituting the cause of action and within 6 years after the
cause of action accrued.
``(8) United states person defined.--In this subsection,
the term `United States person' has the meaning given that term
in subsection (i)(2).''.
(c) Prohibited Foreign Practices by Issuers.--Section 30A of the
Securities Exchange Act of 1934 (15 U.S.C. 78dd-1) is amended by adding
at the end the following:
``(h) Private Right of Action Authorized.--
``(1) Authorized plaintiffs.--Any person that violates
subsection (a) shall be liable in an action brought in
accordance with this subsection in any court of competent
jurisdiction to any issuer that is subject to this section,
domestic concern that is subject to section 104 of the Foreign
Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2), or other
person that is a United States person, that is damaged by the
violation of subsection (a) of this section, for damages caused
to such issuer, domestic concern, or other person by the
violation.
``(2) Proof of damages.--For purposes of this subsection,
the court may not find for the plaintiff in an action under
this subsection unless the plaintiff alleges and proves that--
``(A) the defendant violated subsection (a); and
``(B) the defendant's violation of subsection (a)--
``(i) prevented the plaintiff from
obtaining or retaining business for or with any
person; and
``(ii) assisted the defendant in obtaining
or retaining such business.
``(3) Measure of damages.--
``(A) In general.--The damages that a plaintiff may
obtain in an action under this subsection may be equal
to the higher of the two following amounts that are
established by the plaintiff's allegations and proof:
``(i) The total amount of the contract or
agreement that the defendant gained in
obtaining or retaining business by means of the
violation of subsection (a).
``(ii) The total amount of the contract or
agreement that the plaintiff failed to gain
because of the defendant's obtaining or
retaining business by means of the violation of
subsection (a).
``(B) Treble damages.--In assessing damages under
subparagraph (A), the court shall enter judgment for
three times the amount determined under clause (i) or
(ii) of such subparagraph (whichever is greater),
together with a reasonable attorney's fee and costs,
for the violation of subsection (a).
``(4) Exception for routine governmental action.--The
exception in subsection (b) shall apply to an action under this
subsection.
``(5) Affirmative defenses.--The affirmative defenses in
subsection (c) shall apply to an action under this subsection.
``(6) Contribution.--Each person who becomes liable to make
payment under this subsection may recover contribution as in
cases of contract from any person who, if joined in the
original suit, would have been liable to make the same payment.
``(7) Statute of limitations.--No action shall be
maintained to enforce any liability created under this
subsection unless brought within 3 years after the discovery of
the facts constituting the cause of action and within 6 years
after the cause of action accrued.
``(8) United states person defined.--In this subsection,
the term `United States person' has the meaning given that term
in subsection (g)(2).''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of
the enactment of this Act and shall apply to causes of action accruing
on or after such date of enactment.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committees on the Judiciary, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on the Judiciary, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on the Judiciary, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committees on the Judiciary, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on the Constitution and Civil Justice.
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