USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
4. Defences and Exceptions 4.1 Defences
mis amounts are involved. As noted, small payments related to routine government actions may fall within the FCPA’s narrow exception for so-called facilitation payments. 4.4 Exempt Sectors/Industries The key US anti-bribery and anti-corruption laws do not exempt any industry or sector. However, a potential defendant’s industry or sector may informally be factored into decisions about how the government resolves a potential violation. For example, government authorities may be willing to consider how to investigate defence companies with - out publicising sensitive national security information. 4.5 Safe Harbour or Amnesty Programme US authorities provide broad incentives for compa - nies and individuals to voluntarily disclose misconduct (see 6. Disclosure Processes ). From time to time, US authorities also create safe harbour programmes to further encourage disclosures. In October 2023, the DOJ introduced a new Safe Harbour Policy for Voluntary Self Disclosures Made in Connection with Mergers and Acquisitions. Under this policy, the DOJ will presumptively decline to pros - ecute a company that voluntarily self-discloses mis - conduct that it discovers at another company that it acquired within six months of the closing date, so long as the company co-operates with the DOJ’s investiga - tion and fully remediates the misconduct within one year of the closing date, which may include restitu - tion and disgorgement payments. When an acquiring company voluntarily self-discloses, the acquired entity may also qualify for certain voluntary self-disclosure benefits, including potentially a declination, unless “aggravating factors” exist at the acquired entity.
The FCPA includes two affirmative defences to anti- bribery charges, codified in 15 USC, Section 78dd-1 (c). • The payment, offer, etc, “was lawful under the writ - ten laws and regulations of the... [relevant foreign] country”. A recent case held that this defence only applies where the payment is affirmatively author - ised by local law (ie, the defence does not apply where the payment is simply not prohibited). • The payment, offer, etc, were “reasonable and bona fide expenditures, such as travel and lodging expenses... [and were] directly related to the pro - motion, demonstration, or explanation of products or services; or the execution or performance of a contract” with a foreign government. In practice, defendants also commonly claim that they lacked the requisite intent to commit a corruption crime, that the conduct did not involve an “official act” by a government official, or that there was no quid pro quo in which a benefit was offered in exchange for an official act. The FCPA does not recognise a formal defence based on adequate procedures, but DOJ and SEC attorneys may take the adequacy of compliance controls into account when making charging decisions. 4.2 Exceptions As with the defences themselves, exceptions to US criminal defences generally arise from common law, rather than specific statutory provisions. For example, a person may not be able to rely on an “advice-of- counsel” defence where the advice was obtained in bad faith (eg, they withheld key facts from outside counsel). 4.3 De Minimis Exceptions In general, there are no statutory de minimis excep - tions for violations of US criminal laws (although, as previously noted, US laws permit certain de minimis gifts for government officials). Because of US authori - ties’ considerable prosecutorial discretion, however, enforcement may be less likely where only de mini -
5. Penalties for Violations 5.1 Penalties on Conviction FCPA
Violating the FCPA’s substantive anti-bribery provi - sions may result in up to five years’ imprisonment and/or a fine of up to USD250,000 for each offence
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