1019

Sanctions Against Bribery

The following criminal penalties may be imposed for violations of the FCPA's antibribery provisions: corporations and other business entities are subject to a fine of up to $2,000,000; officers, directors, stockholders, employees, and agents (including non-U.S. nationals) are subject to a fine of up to $100,000 and imprisonment for up to five years. See 15 U.S.C. §§ 78dd-2(g), 78dd-3(e), 78ff(c). Moreover, under the Alternative Fines Act, these fines may be actually quite higher -- the actual fine may be up to twice the benefit that the defendant sought to obtain by making the corrupt payment. See 18 U.S.C. § 3571(d). Fines imposed on individuals may not be paid by their employer or principal. See 15 U.S.C. §§ 78dd-2(g)(3), 78dd-3(e)(3), 78ff(c)(3). A violation of the FCPA may also result in the civil and criminal forfeiture of assets. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) expanded the list of civil forfeiture predicates to include each offense listed as a specified unlawful activity in the Money Laundering Control Act, 18 U.S.C. § 1956(c)(7). CAFRA further provided for criminal forfeiture for all offenses for which civil forfeiture was authorized. See 28 U.S.C. § 2461(c). Accordingly, any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of the FCPA, or a conspiracy to violate the FCPA, may be forfeited. See 18 U.S.C. § 981. Additionally, the Attorney General or the SEC, as appropriate, may bring a civil action to enjoin any act or practice of a firm whenever it appears that the firm (or an officer, director, employee, agent, or stockholder acting on behalf of the firm) is in violation (or about to be) of the FCPA antibribery provisions. See 78u, 78dd-2(d), 78dd-3(d). In such a civil action, a fine of $10,000 may be assessed per each act committed in furtherance of the offense, potentially making the total fine greater than $10,000. See 15 U.S.C. §§ 78dd-2(g), 78dd-3(e), 78ff(c). Lastly, a person or firm found in violation of the FCPA may be barred from doing business with the Federal government. Indictment alone can lead to suspension of the right to do business with the government. Further, a person or firm found guilty of violating the FCPA may be ruled ineligible to receive export licenses; the SEC may suspend or bar persons from the securities business and impose civil penalties on persons in the securities business for violations of the FCPA; the Commodity Futures Trading Commission and the Overseas Private Investment Corporation both provide for possible suspension or debarment from agency programs for violation of the FCPA; and an unlawful payment under the FCPA cannot be deducted under the tax laws as a business expense. [updated November 2000] [cited in USAM 9-47.100]