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 provi-
sions as fall within the jurisdiction of the committee concerned 
A BILL 
To authorize certain private rights of action under the For-
eign Corrupt Practices Act of 1977 for violations that 
damage certain businesses, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Foreign Business Brib-
ery Prohibition Act of 2016’’. 
SEC. 2. ACTIONS AUTHORIZED. 
(a) PROHIBITED FOREIGN PRACTICES BY DOMESTIC 
CONCERNS.—Section 104 of the Foreign Corrupt Prac-
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tices Act of 1977 (15 U.S.C. 78dd–2) is amended by add-
ing 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 ac-
tion brought in accordance with this subsection in 
any court of competent jurisdiction to any issuer 
that is subject to section 30A of the Securities Ex-
change 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 plain-
tiff 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 sub-
section (a)— 
‘‘(i) prevented the plaintiff from ob-
taining or retaining business for or with 
any person; and 
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‘‘(ii) assisted the defendant in obtain-
ing 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 vio-
lation 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), to-
gether with a reasonable attorney’s fee and 
costs, for the violation of subsection (a). 
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‘‘(4) EXCEPTION FOR ROUTINE GOVERNMENTAL 
ACTION.—The exception in subsection (b) shall apply 
to an action under this subsection. 
‘‘(5) AFFIRMATIVE
DEFENSES.—The affirma-
tive defenses in subsection (c) shall apply to an ac-
tion under this subsection. 
‘‘(6) CONTRIBUTION.—Each person who be-
comes 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 Prac-
tices Act of 1977 (15 U.S.C. 78dd–3) is amended— 
(1) by redesignating subsection (f) as sub-
section (g); and 
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(2) by inserting after subsection (e) the fol-
lowing: 
‘‘(f) PRIVATE RIGHT OF ACTION AUTHORIZED.— 
‘‘(1) AUTHORIZED
PLAINTIFFS.—Any person 
that violates subsection (a) shall be liable in an ac-
tion brought in accordance with this subsection in 
any court of competent jurisdiction to any issuer 
that is subject to section 30A of the Securities Ex-
change 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 vio-
lation 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 plain-
tiff 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 sub-
section (a)— 
‘‘(i) prevented the plaintiff from ob-
taining or retaining business for or with 
any person; and 
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‘‘(ii) assisted the defendant in obtain-
ing 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 vio-
lation 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), to-
gether with a reasonable attorney’s fee and 
costs, for the violation of subsection (a). 
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