The report also noted that “U.S. law enforcement agencies have made extensive use of other laws and offenses to track payments to foreign government officials and intermediaries, in addition to or in place of FCPA fees.” [xxi] Ultimately, the report determined the “overall model of U.S. global enforcement in the fight against foreign bribery.” On November 13, 2020, SEC Commissioners Hester Peirce and Elad Roisman issued a public statement disagreeing with the SEC`s settlement with Andeavor LLC (“Andeavor”). [xvii] Although the case itself concerns insider trading and not foreign bribery, a majority of the Commission stated that Andeavor applied a “short-cut and informal process” that resulted in a violation of the FCPA`s internal accounting control provisions. The restriction in paragraph (a) applies to the activity of a former officer or employee as an agent or attorney of a person other than the United States in connection with certain cases, whether pending in court or elsewhere. The matters involve one or more specific parties to which the United States is one of the parties or in which the United States has a direct and substantial interest and in which the former officer or employee was personally and substantially involved while in a government position. In keeping with its anti-corruption objective, the FCPA amends the Securities Exchange Act of 1934 to require all companies with securities listed in the United States. to comply with certain accounting standards, such as: ensuring the accuracy and transparency of financial records and maintaining internal accounting controls. [3] The implementation and effectiveness of a company`s compliance program plays an important role in mitigating or potentially avoiding corporate criminal liability under the DOJ`s Sentencing Guidelines (USSG or the “Guidelines”) and Principles of Federal Prosecution of Business Organizations (the “Principles”) and the FCPA pilot program. In 1991, the U.S. Sentencing Commission (the “Commission”) issued sentencing guidelines for commercial organizations that ordered federal judges to impose substantial fines on companies convicted of crimes. Despite a 2005 U.S. Supreme Court decision concluding that judges are not bound by the guidelines when imposing sanctions, the guidelines remain the primary framework for resolving criminal enforcement actions and imposing related fines, and are therefore very informative in anticipating the consequences of U.S.
anti-corruption enforcement action against a company. As with all sentencing guidelines, the Board identified factors that would increase or decrease an organization`s culpability. These factors include “the existence of an effective compliance and ethics program” at the time of the breach. (See USSG §8C2.5(f).) Section 8B2.1 of the Guidelines outlines the seven components of what it considers to be an effective compliance program. These seven elements are described by the Commission as minimum requirements for establishing a compliance program that fosters an organizational culture of ethical behaviour. Therefore, they ask companies to do at least the following: The DOJ is the primary law enforcement agency with the power to prosecute corruption at the federal level in the United States. Within the DOJ, a specialized FCPA unit within the Fraud Division handles foreign bribery cases, now more often with the support of a U.S. Attorney`s Office.
Meanwhile, the Department of Public Integrity and the U.S. Attorney`s Office handle domestic corruption cases. Each of the 94 U.S. prosecutors` offices has the authority to file federal criminal charges of corruption related to their district. The SEC has broad civil law powers to deal with civil violations of the FCPA involving publicly traded companies. Finally, state and local prosecutors can initiate criminal charges for violations of state anti-corruption laws. In particular, this defense requires the Company to prove that the provision of the payment or valuables was lawful under the written laws of the receiving director`s country. The fact that a country does not have written laws prohibiting payment or valuables is not enough to qualify for a local legal defense. This defence cannot be invoked either, as a foreign country cannot actively enforce its anti-corruption laws. Federal Mail and Electronic Fraud Laws, 18 U.S.C. Articles 1341, 1343, and 1346 prohibit the use of mail and interstate cable communications to carry out a “plan or trick to defraud” or to deprive anyone of money or property, including the intangible right to “honest services.” In Skilling v. In the United States, the U.S.
Supreme Court has ruled that the theory of fraud includes honest services, bribes, and bribes paid to employees of private companies, but not broader efforts to defraud a company`s shareholders.4 Therefore, the use of postal and courier communications in commercial bribery can prosecute these individuals for postal and wire fraud. pursue.