41 Pages Posted: 4 May 2009
Date Written: Winter 2008
Foreign Corrupt Practices Act ("FCPA") enforcement actions against companies for making improper payments to foreign officials in order to obtain or retain business were once thought to entangle only resource extraction companies operating in the third world. However, several recent FCPA enforcement actions and inquiries demonstrate that U.S. enforcement agencies are "casting a wider net" across many different industries in an effort to combat foreign corruption and bribery. These enforcement actions and inquiries also demonstrate that health care companies will not be immune from increased FCPA scrutiny as they continue to expand into overseas markets.
For this reason, any health-care company doing business or seeking to do business in a foreign market must recognize, understand, and appreciate the risk of doing business internationally in terms of FCPA compliance. In fact, FCPA compliance in the health-care industry poses a unique risk and challenge given the number of foreign hospitals, clinics, laboratories, and medical providers that are state-owned or state-controlled. Failure to recognize the unique FCPA risks of doing business or seeking to do business with state-owned or state-controlled entities can expose health-care companies and their personnel to significant criminal and civil liability under U.S. law, as well as harsh collateral sanctions and damage to a company's reputation. Thus, any health-care company with an international presence or seeking to do business in a foreign country should have in place effective, comprehensive, and well-communicated FCPA compliance policies and procedures.
This article explores the unique FCPA risks and challenges for health-care companies doing business or seeking to do business in foreign markets. While the risks and challenges are numerous, they are not unmanageable and the key to FCPA compliance is to adopt effective, comprehensive, and well-communicated FCPA compliance policies and procedures. While such policies and procedures will not guarantee a "clean bill of health," they may well prevent FCPA maladies from occuring in the first place.
Keywords: Foreign Corrupt Practices Act, FCPA
Suggested Citation: Suggested Citation
Koehler, Mike, A Malady in Search of a Cure: The Increase in Foreign Corrupt Practices Act Enforcement Actions Against Health Care Companies (Winter 2008). University of Memphis Law Review, Vol. 38, p. 261, 2008. Available at SSRN: https://ssrn.com/abstract=1396262