Page 45 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

In cases involving FCPA conspiracies, the official request is made by the U.S. government to
government may be able to reach conduct the foreign authority and ends on the earlier of
occurring before the general limitations period the date on which the foreign authority takes final
applicable to conspiracies under 18 U.S.C. § 371. action on the request, or three years. 216
For conspiracy offenses, the government generally

need prove only that one act in furtherance of the Statute of Limitations in Civil Actions
conspiracy occurred during the limitations period, In civil cases brought by SEC, the statute
thus enabling the government to prosecute bribes of limitations is set by 28 U.S.C. § 2462, which
paid or accounting violations occurring more than provides for a five-year limitation on any “suit or
five or six years, respectively, prior to the filing of proceeding for the enforcement of any civil fine,
formal charges. 215 penalty, or forfeiture.” The five-year period begins

There are at least two ways in which the to run “when the claim first accrued.” The five-year
applicable limitations period is commonly limitations period applies to SEC actions seeking
extended. First, companies or individuals civil penalties, but it does not prevent SEC from
cooperating with DOJ may enter into a tolling seeking equitable remedies, such as an injunction,
agreement that voluntarily extends the limitations for conduct pre-dating the five-year period. In

period. Companies and individuals may choose Kokesh v. SEC, the Supreme Court ruled that, because
to do this so that they may have additional time the disgorgement remedy constitutes a “penalty,”
to do their own investigation of the conduct, as it is therefore subject to the five-year statute of
well as to give them an opportunity to meet with limitations in 28 U.S.C. § 2462. 217
the government to discuss the case and attempt In cases against individuals who are not
to reach a negotiated resolution. Second, under residents of the United States, the statute is tolled

18 U.S.C. § 3292, the government may seek a for any period when the defendants are not “found
court order suspending the statute of limitations within the United States in order that proper service
period in a criminal case for up to three years in may be made thereon.” 218 Furthermore, companies
order to obtain evidence from foreign countries. or individuals may enter into tolling agreements

Generally, the suspension period begins when the that voluntarily extend the limitations period.

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