USA Law and Practice Contributed by: Eric Bruce and Justin Simeone, Freshfields US LLP
committed by an individual. Corporations may be punished by fines of up to USD2 million per violation. Wilful violations of the accounting provisions may result in criminal fines of up to USD25 million for a legal entity. Individuals may be required to pay fines of up to USD5 million and/or serve as many as 20 years in prison. Moreover, the DOJ is authorised to seek a fine of up to twice the benefit that the defend - ant obtained by making the corrupt payment(s), which often represents a far greater amount than the maxi - mum fines previously noted. Defendants may be required to pay civil monetary penalties of USD10,000 for each violation of the anti- bribery provisions, whether by an individual or legal person. The DOJ and the SEC may also seek civil dis - gorgement penalties for books and records violations. Domestic Bribery Penalties for violating domestic bribery or fraud laws vary by jurisdiction. For example, violations of the federal mail or wire fraud statutes may result in fines and up to 20 years’ imprisonment (or 30 years’ imprisonment in some cir - cumstances). The maximum penalty for violating 18 USC, Section 201 (b) is 15 years in prison and/or sub - stantial monetary fines; 18 USC, Section 201 (c) has a maximum prison sentence of two years and/or fines. Collateral Consequences Aside from imprisonment and monetary fines/penal - ties, an anti-corruption investigation (or even allega - tions that a company has violated bribery or corruption laws) could lead to several collateral consequences that could prove extremely damaging to a business or individual. Such an investigation could lead to debar - ment from contracting with the US government or international financial institutions, loss of important regulatory statuses under US law, and/or termination of commercial relationships. 5.2 Guidelines Applicable to the Assessment of Penalties As previously noted, the Justice Manual, FCPA Resource Guide, and other publications provide
important guidance on how agencies assess penal - ties. US Sentencing Commission Guidelines The US Sentencing Commission Guidelines (USSG), which are a set of advisory rules designed to inform judges when imposing criminal sentences, prescribe a number of factors that may warrant enhanced or mitigated sentences. For example, the greater the monetary loss caused by a corrupt scheme, the more severe the recommended sentence. Generally speak - ing, bribery and other white-collar crimes do not have mandatory minimum sentences, but repeated offenc - es are more severely punished. The USSG permit courts to reduce criminal penalties where a company has an effective compliance pro - gramme. The DOJ often uses the USSG as a baseline to assess penalties in corporate resolutions. Chap - ter 8 of the USSG provides guidelines for sentencing organisations that have been convicted of a crime. It describes the elements of an “effective” compliance programme; companies with such programmes may be eligible for substantial reductions from their sen - tence. The Justice Manual and Compliance Guidance In addition, both the Justice Manual and the FCPA Resource Guide discuss self-reporting and co-oper - ating with law enforcement, and the DOJ has pro - vided guidance on the types of factors it considers in assessing a company’s compliance programme when investigating a corporate entity (the “US Compliance Guidance”). The DOJ is not legally obligated to follow the Guidance, which is similarly not binding on other US government authorities. Even so, the DOJ and oth - ers generally take these factors into account. The DOJ takes a functional approach to the US Com - pliance Guidance – the agency does not simply verify whether or not a compliance programme includes cer - tain components (eg, a whistle-blower programme). Instead, the US Compliance Guidance emphasises that the DOJ will make an individualised assessment of a company’s compliance programme based on that company’s particular risk profile and specific context. Indeed, the US Compliance Guidance notes that there is no “rigid formula” for assessing compliance pro -
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