USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
carry out the goals of an enterprise. Both officers and employees can be liable under RICO. RICO cases may be brought civilly or criminally. Crim - inal violators face imprisonment of up to 20 years, a USD250,000 fine and forfeiture of any property derived from the unlawful activity (18 USC Sections 1963, 3571). Civil violators face treble damages and liability for reasonable attorney fees (18 USC Section 1964). 3.2 Bribery, Influence Peddling and Related Offences Both federal and state law prohibit domestic bribery. The general federal bribery statute punishes giving or receiving anything of value to or from a public offi - cial to influence official acts (18 USC Section 201 (b)). Successful prosecution demonstrates a quid pro quo – that the thing of value was given in exchange for the official act. Courts construe “public official” and “thing of value” broadly. A similar law prohibits bribing agents of an organi - sation, state or local government or agency with anything worth at least USD5,000 when the subject organisation receives at least USD10,000 in federal programme funds annually (18 USC Section 666). No federal funds need to be implicated in the bribery for conviction. The FCPA criminalises bribery of foreign officials. A prosecutor must prove that the defendant offered to pay, paid or promised to pay money or anything of value: • to a foreign government official, whether directly or indirectly; • with corrupt intent; • for the purpose of influencing any official act or decision, inducing the official to influence any act or decision of a foreign government or securing an improper advantage; and • to obtain, retain or direct business. There is no de minimis defence, and a mere offer of payment incurs liability. There is a limited safe harbour for “facilitation” payments that merely encourage a government official to perform a routine governmen -
tal action, such as processing visas or scheduling inspections. The SEC investigates and brings civil enforcement actions under the FCPA, and can seek civil mon - etary penalties per violation from entities of up to USD500,000 and from individuals of up to USD100,000 based on the gross amount of monetary gain to the defendant as a result. The DOJ can bring criminal and civil prosecutions under the FCPA. Individual criminal violators face imprisonment of up to five years, fines of up to USD250,000 per violation (which may not be paid by the culpable entity), or both. Entity violators face fines of up to USD2 million per violation. As with other fed - eral criminal offences, the alternative fines provision specifies that an individual or entity can alternatively be criminally fined up to twice the gross monetary gain or loss resulting from the violation if that figure is greater than the otherwise applicable fine amount (18 USC Section 3571 (d)) – which could total billions of dollars. In civil prosecutions, individuals and entities can be fined up to USD10,000. A “wilful” FCPA violation in a criminal case carries a fine of up to USD25 million for entities or USD5 million for individuals. Individuals face imprisonment of up to 20 years. Violations must involve knowing in order to incur criminal liability. FCPA violations may also trigger exclusion from federal programmes or suspension or debarment within the securities industry. Relatedly, the Foreign Extortion Prevention Act (FEPA) (18 USC Section 1352) prohibits foreign officials from corruptly seeking, receiving or agreeing to receive anything of value from any person while in the territory of the USA, or with a US issuer or a domestic concern in exchange for an improper business advantage. Vio - lations carry fines of up to USD250,000 per violation or three times the monetary equivalent of the thing of value, imprisonment for up to 15 years, or both. Bribery of foreign non-governmental officials is also potentially punishable under the Travel Act (18 USC Section 1952), which criminalises interstate travel, for - eign commerce or using interstate facilities, such as the mail, in furtherance of an unlawful activity.
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