Answer ... Companies can, and are encouraged by US authorities to, voluntarily report anti-corruption violations and cooperate with ongoing investigations. Both the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) will consider self-reporting and cooperation when determining an appropriate punishment, if a violation is confirmed (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 54 (2012, updated 2015)). Under the DOJ’s Principles of Federal Prosecution of Business Organizations, federal prosecutors are instructed to consider a company’s voluntary and timely disclosures, as well as its willingness to provide relevant information, along with any remedial measures that demonstrate a commitment to correcting the misconduct. Similarly, the SEC’s framework for evaluating cooperation by companies instructs the SEC to consider self-reporting, remediation measures and cooperation with law enforcement authorities (id at 54-55).
Answer ... A compliance programme will not eliminate liability for a bribery offence, but may serve as a mitigating factor in determining whether to bring charges against the corporate entity and in how to settle a matter. In corporate settlements, the quality of the compliance programme can influence the form of the settlement (ie, as a non-prosecution agreement, deferred prosecution agreement or guilty plea), the quantum of financial penalty and the type of remedial requirements, including whether to require an independent compliance monitor, among other things. Guidance has been issued to address hallmarks of an effective compliance programme (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 53 (2012, updated 2015); FCPA Corporate Enforcement Policy, March 2019).
Answer ... The Foreign Corrupt Practices Act (FCPA) sets forth two affirmative defences:
- Local law defence: “the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official’s, political party’s, party official’s, or candidate’s country” (15 USC § 78dd-1(c)(1)).
- Reasonable and bona fide expenditures defence: “the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to—(A) the promotion, demonstration, or explanation of products or services; or (B) the execution or performance of a contract with a foreign government or agency thereof” (15 USC § 78dd-1(c)(2)).
In addition, payments to foreign public officials made as a result of extortion or duress do not trigger liability under the FCPA. While this defence is not explicitly stated in the statute, courts and Congress have recognised that payments made in the face of threats to health and safety cannot be made with the requisite corrupt intent (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 27 (2012, updated 2015)). However, economic coercion, such as a threat to restrict a company’s entrance to a marketplace, does not qualify under this defence (id).
Answer ... Yes. The Principles of Federal Prosecution set out the considerations to be weighed when the government is considering whether to enter into a plea agreement with a defendant (US Attorneys’ Manual § 9-27.420). Pursuant to the principles, the DOJ may agree to resolve criminal FCPA matters through a declination or, in appropriate cases, a negotiated resolution resulting in a plea agreement, deferred prosecution agreement or non-prosecution agreement. For the DOJ to consider a plea agreement, the company would be required to admit to the facts supporting the charges, admit guilt, and agree to be convicted of the charged crimes (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 74 (2012, updated 2015)).
Answer ... For each criminal violation of the anti-bribery provisions, the FCPA provides that corporations and other business entities are subject to a fine of up to $2 million. Individuals – including officers, directors, stockholders and agents – are subject to a fine of up to $250,000 and imprisonment for up to five years. For each violation of the accounting provisions, the FCPA provides that corporations and other business entities are subject to a fine of up to $25 million. Individuals are subject to a fine of up to $5 million and imprisonment for up to 20 years (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 68 (2012, updated 2015)). Under the Alternative Fines Act (18 USC § 3571(d)), courts may impose significantly higher fines – up to twice the benefit that the defendant obtained by making the corrupt payment (id). Civil violations of anti-bribery provisions are penalised by fines of up to $16,000 per violation (id at 69). For violations of the accounting provisions, the SEC may obtain a civil penalty not to exceed the greater of:
- the gross amount of the pecuniary gain to the defendant as a result of the violations; or
- a specified dollar limitation ranging from $7,500 to $725,000 (id).
Additional non-exhaustive penalties are also possible, including suspension or debarment from contracting with the federal government, cross-debarment by multilateral development banks, and the suspension or revocation of certain export privileges (id at 70).
Answer ... The FCPA’s anti-bribery and accounting provisions do not specify a statute of limitations for criminal actions. Accordingly, the general five-year limitations period set forth in 18 USC § 3282 applies to substantive criminal violations of the act. However, in FCPA cases involving conspiracies, the government may be able to reach conduct occurring before the five-year limitations period, if the government can prove that one act in furtherance of the conspiracy occurred during the limitations period (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act” at 35 (2012, updated 2015)). The DOJ also has the authority to petition a court to suspend the statute of limitations for up to three years in order to obtain evidence from foreign countries (id). In civil cases brought by the SEC, the statute of limitations is set by 28 USC § 2462, which provides for a five-year limitations period, which begins to run “when the claim is first accrued” (id).