USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
• Evidentiary gaps – the prosecutor has not met its burden to prove each element of the offence beyond a reasonable doubt. • Lack of intent/acts in good faith – for charges requiring a showing of specific intent or a guilty mind, acts made in good faith or without such intent may provide a defence. • Lack of jurisdiction/extraterritoriality – the prosecu - tor does not have the required legal authority or has not established the required nexus to exercise its jurisdiction. • Coercion and entrapment – a defendant was forced or coerced to perform an illegal act by others. The government may have entrapped the defendant by creating a set of circumstances in which an otherwise law-abiding person would be induced to commit a crime. • Statute-specific defences – some statutes provide for specific affirmative defences. The FCPA, for example, allows defendants to show that a pay - ment or promise was lawful under the local law where it was made (15 USC Section 78dd- 1 (c)(1)). • Conduct was authorised – an entity may argue that it was authorised or licensed to conduct certain activity, or that its activity was not prohibited. • Due process violations – the government conduct - ed an illegal search or seizure. • Statute of limitations – the charges were not timely raised. An effective compliance programme is not a defence to criminal charges, though government agencies view an effective compliance programme as a mitigat - ing factor weighing against prosecution, enforcement actions or the assessment of penalties. 4.2 De Minimis No industry or sector is exempt from compliance with white-collar crime-related laws. Nonetheless, excep - tions to white-collar offences exist under statute-spe - cific provisions. For example, the FCPA contains an exception for so-called facilitation payments used to expedite or secure the performance of routine govern - mental actions (15 USC Section 78dd- 1 (b)). However, courts and regulators construe the exception narrow - ly, and payments typically involve small amounts. No de minimis exceptions exist under the FCPA or other white-collar fraud statutes.
In addition, federal securities laws generally require that issuers disclose all material information in their filings. 4.3 Plea Agreements, Co-Operation, Self- Disclosure and Leniency Plea agreements allow defendants, both individual and corporate, to acknowledge wrongdoing volun - tarily in exchange for lesser penalties or convictions on potentially reduced charges. Plea agreements also offer predictability in outcomes and penalties that tri - als do not. Plea agreements (as opposed to trials) are commonly used to resolve criminal cases in the USA. Federal plea agreement procedures are governed by Rule 11 of the Federal Rules of Criminal Procedure. Defendants must admit to sufficient facts to prove each element of the crime to which they are plead - ing, as well as the crime itself. Federal and state pros - ecutors follow common charging and plea practices established for their various offices, which tend to be recorded in confidential internal guidance. Voluntary self-disclosure and meaningful co-operation with investigators are considered mitigating factors by agencies and prosecutors. Other common leniency measures include remediation efforts, the mitigation of possible harm, restitution and reform (including changes in internal policies). The payment of restitu - tion in advance of enforcement action also demon - strates a corporation’s acceptance of responsibility. Examples of proactive steps that legal counsel can take to receive co-operation credit include: • flagging key documents and making witnesses available on an expedited basis; • offering translations of documents where neces - sary; • providing informed factual explanations outside mere advocacy; and • helping clients who may have violated the law to admit that violation and work in good faith to remedy it. 4.4 Whistle-Blower Protection Whistle-blowers have express protection against retal - iation by employers under several statutes, including
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