I 114th CONGRESS 2d Session H. R. 5438 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. Short title This Act may be cited as the Foreign Business Bribery Prohibition Act of 2016 . 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). . 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.