I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Foreign Business Brib5 ery Prohibition Act of 2016’’. 

6 SEC. 2. ACTIONS AUTHORIZED. 

7 (a) PROHIBITED FOREIGN PRACTICES BY DOMESTIC

8 CONCERNS.—Section 104 of the Foreign Corrupt PracVerDate Sep 11 2014 06:17 Jun 10, 2016 Jkt 059200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5438.IH H5438

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1 tices Act of 1977 (15 U.S.C. 78dd–2) is amended by add2 ing at the end the following: 

3 ‘‘(j) PRIVATE RIGHT OF ACTION AUTHORIZED.— 

4 ‘‘(1) AUTHORIZED PLAINTIFFS.—Any person 

5 that violates subsection (a) shall be liable in an ac6 tion brought in accordance with this subsection in 

7 any court of competent jurisdiction to any issuer 

8 that is subject to section 30A of the Securities Ex9 change Act of 1934, domestic concern that is subject 

10 to this section, or other person that is a United 

11 States person, that is damaged by the violation of 

12 subsection (a) of this section, for damages caused to 

13 such issuer, domestic concern, or other person by 

14 the violation. 

15 ‘‘(2) PROOF OF DAMAGES.—For purposes of 

16 this subsection, the court may not find for the plain17 tiff in an action under this subsection unless the 

18 plaintiff alleges and proves that— 

19 ‘‘(A) the defendant violated subsection (a); 

20 and 

21 ‘‘(B) the defendant’s violation of sub22 section (a)— 

23 ‘‘(i) prevented the plaintiff from ob24 taining or retaining business for or with 

25 any person; and 


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1 ‘‘(ii) assisted the defendant in obtain2 ing or retaining such business. 

3 ‘‘(3) MEASURE OF DAMAGES.— 

4 ‘‘(A) IN GENERAL.—The damages that a 

5 plaintiff may obtain in an action under this 

6 subsection may be equal to the higher of the 

7 two following amounts that are established by 

8 the plaintiff’s allegations and proof: 

9 ‘‘(i) The total amount of the contract 

10 or agreement that the defendant gained in 

11 obtaining or retaining business by means 

12 of the violation of subsection (a). 

13 ‘‘(ii) The total amount of the contract 

14 or agreement that the plaintiff failed to 

15 gain because of the defendant’s obtaining 

16 or retaining business by means of the vio17 lation of subsection (a). 

18 ‘‘(B) TREBLE DAMAGES.—In assessing 

19 damages under subparagraph (A), the court 

20 shall enter judgment for three times the 

21 amount determined under clause (i) or (ii) of 

22 such subparagraph (whichever is greater), to23 gether with a reasonable attorney’s fee and 

24 costs, for the violation of subsection (a). 


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1 ‘‘(4) EXCEPTION FOR ROUTINE GOVERNMENTAL

2 ACTION.—The exception in subsection (b) shall apply 

3 to an action under this subsection. 

4 ‘‘(5) AFFIRMATIVE DEFENSES.—The affirma5 tive defenses in subsection (c) shall apply to an ac6 tion under this subsection. 

7 ‘‘(6) CONTRIBUTION.—Each person who be8 comes liable to make payment under this subsection 

9 may recover contribution as in cases of contract 

10 from any person who, if joined in the original suit, 

11 would have been liable to make the same payment. 

12 ‘‘(7) STATUTE OF LIMITATIONS.—No action 

13 may be maintained to enforce any liability created 

14 under this subsection unless brought within 3 years 

15 after the discovery of the facts constituting the 

16 cause of action and within 6 years after the cause 

17 of action accrued. 

18 ‘‘(8) UNITED STATES PERSON DEFINED.—In 

19 this subsection, the term ‘United States person’ has 

20 the meaning given that term in subsection (i)(2).’’. 

21 (b) PROHIBITED FOREIGN PRACTICES BY OTHER

22 PERSONS.—Section 104A of the Foreign Corrupt Prac23 tices Act of 1977 (15 U.S.C. 78dd–3) is amended— 

24 (1) by redesignating subsection (f) as sub25 section (g); and 


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1 (2) by inserting after subsection (e) the fol2 lowing: 

3 ‘‘(f) PRIVATE RIGHT OF ACTION AUTHORIZED.— 

4 ‘‘(1) AUTHORIZED PLAINTIFFS.—Any person 

5 that violates subsection (a) shall be liable in an ac6 tion brought in accordance with this subsection in 

7 any court of competent jurisdiction to any issuer 

8 that is subject to section 30A of the Securities Ex9 change Act of 1934, domestic concern that is subject 

10 to section 104 of this Act, or other person that is 

11 a United States person, that is damaged by the vio12 lation of subsection (a) of this section, for damages 

13 caused to such issuer, domestic concern, or other 

14 person by the violation. 

15 ‘‘(2) PROOF OF DAMAGES.—For purposes of 

16 this subsection, the court may not find for the plain17 tiff in an action under this subsection unless the 

18 plaintiff alleges and proves that— 

19 ‘‘(A) the defendant violated subsection (a); 

20 and 

21 ‘‘(B) the defendant’s violation of sub22 section (a)— 

23 ‘‘(i) prevented the plaintiff from ob24 taining or retaining business for or with 

25 any person; and 


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1 ‘‘(ii) assisted the defendant in obtain2 ing or retaining such business. 

3 ‘‘(3) MEASURE OF DAMAGES.— 

4 ‘‘(A) IN GENERAL.—The damages that a 

5 plaintiff may obtain in an action under this 

6 subsection may be equal to the higher of the 

7 two following amounts that are established by 

8 the plaintiff’s allegations and proof: 

9 ‘‘(i) The total amount of the contract 

10 or agreement that the defendant gained in 

11 obtaining or retaining business by means 

12 of the violation of subsection (a). 

13 ‘‘(ii) The total amount of the contract 

14 or agreement that the plaintiff failed to 

15 gain because of the defendant’s obtaining 

16 or retaining business by means of the vio17 lation of subsection (a). 

18 ‘‘(B) TREBLE DAMAGES.—In assessing 

19 damages under subparagraph (A), the court 

20 shall enter judgment for three times the 

21 amount determined under clause (i) or (ii) of 

22 such subparagraph (whichever is greater), to23 gether with a reasonable attorney’s fee and 

24 costs, for the violation of subsection (a). 


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1 ‘‘(4) EXCEPTION FOR ROUTINE GOVERNMENTAL

2 ACTION.—The exception in subsection (b) shall apply 

3 to an action under this subsection. 

4 ‘‘(5) AFFIRMATIVE DEFENSES.—The affirma5 tive defenses in subsection (c) shall apply to an ac6 tion under this subsection. 

7 ‘‘(6) CONTRIBUTION.—Each person who be8 comes liable to make payment under this subsection 

9 may recover contribution as in cases of contract 

10 from any person who, if joined in the original suit, 

11 would have been liable to make the same payment. 

12 ‘‘(7) STATUTE OF LIMITATIONS.—No action 

13 may be maintained to enforce any liability created 

14 under this subsection unless brought within 3 years 

15 after the discovery of the facts constituting the 

16 cause of action and within 6 years after the cause 

17 of action accrued. 

18 ‘‘(8) UNITED STATES PERSON DEFINED.—In 

19 this subsection, the term ‘United States person’ has 

20 the meaning given that term in subsection (i)(2).’’. 

21 (c) PROHIBITED FOREIGN PRACTICES BY ISSUERS.— 

22 Section 30A of the Securities Exchange Act of 1934 (15 

23 U.S.C. 78dd–1) is amended by adding at the end the fol24 lowing: 

25 ‘‘(h) PRIVATE RIGHT OF ACTION AUTHORIZED.— 


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1 ‘‘(1) AUTHORIZED PLAINTIFFS.—Any person 

2 that violates subsection (a) shall be liable in an ac3 tion brought in accordance with this subsection in 

4 any court of competent jurisdiction to any issuer 

5 that is subject to this section, domestic concern that 

6 is subject to section 104 of the Foreign Corrupt 

7 Practices Act of 1977 (15 U.S.C. 78dd–2), or other 

8 person that is a United States person, that is dam9 aged by the violation of subsection (a) of this sec10 tion, for damages caused to such issuer, domestic 

11 concern, or other person by the violation. 

12 ‘‘(2) PROOF OF DAMAGES.—For purposes of 

13 this subsection, the court may not find for the plain14 tiff in an action under this subsection unless the 

15 plaintiff alleges and proves that— 

16 ‘‘(A) the defendant violated subsection (a); 

17 and 

18 ‘‘(B) the defendant’s violation of sub19 section (a)— 

20 ‘‘(i) prevented the plaintiff from ob21 taining or retaining business for or with 

22 any person; and 

23 ‘‘(ii) assisted the defendant in obtain24 ing or retaining such business. 

25 ‘‘(3) MEASURE OF DAMAGES.— 


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1 ‘‘(A) IN GENERAL.—The damages that a 

2 plaintiff may obtain in an action under this 

3 subsection may be equal to the higher of the 

4 two following amounts that are established by 

5 the plaintiff’s allegations and proof: 

6 ‘‘(i) The total amount of the contract 

7 or agreement that the defendant gained in 

8 obtaining or retaining business by means 

9 of the violation of subsection (a). 

10 ‘‘(ii) The total amount of the contract 

11 or agreement that the plaintiff failed to 

12 gain because of the defendant’s obtaining 

13 or retaining business by means of the vio14 lation of subsection (a). 

15 ‘‘(B) TREBLE DAMAGES.—In assessing 

16 damages under subparagraph (A), the court 

17 shall enter judgment for three times the 

18 amount determined under clause (i) or (ii) of 

19 such subparagraph (whichever is greater), to20 gether with a reasonable attorney’s fee and 

21 costs, for the violation of subsection (a). 

22 ‘‘(4) EXCEPTION FOR ROUTINE GOVERNMENTAL

23 ACTION.—The exception in subsection (b) shall apply 

24 to an action under this subsection. 


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1 ‘‘(5) AFFIRMATIVE DEFENSES.—The affirma2 tive defenses in subsection (c) shall apply to an ac3 tion under this subsection. 

4 ‘‘(6) CONTRIBUTION.—Each person who be5 comes liable to make payment under this subsection 

6 may recover contribution as in cases of contract 

7 from any person who, if joined in the original suit, 

8 would have been liable to make the same payment. 

9 ‘‘(7) STATUTE OF LIMITATIONS.—No action 

10 shall be maintained to enforce any liability created 

11 under this subsection unless brought within 3 years 

12 after the discovery of the facts constituting the 

13 cause of action and within 6 years after the cause 

14 of action accrued. 

15 ‘‘(8) UNITED STATES PERSON DEFINED.—In 

16 this subsection, the term ‘United States person’ has 

17 the meaning given that term in subsection (g)(2).’’. 

18 SEC. 3. EFFECTIVE DATE. 

19 The amendments made by this Act shall take effect 

20 on the date of the enactment of this Act and shall apply 

21 to causes of action accruing on or after such date of enact22 ment. 

Æ 


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