Page 78 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

The Guidelines provide different penalties For companies, the offense level is calculated
for the different provisions of the FCPA. The pursuant to §§ 2C1.1 or 2B1.1 in the same way
initial offense level for violations of the anti- as for an individual—by starting with the base
bribery provisions is determined under § 2C1.1, offense level and increasing it as warranted by
while violations of the accounting provisions are any applicable specific offense characteristics.

assessed under § 2B1.1. For individuals, the initial The organizational guidelines found in Chapter 8,
offense level is modified by factors set forth in however, provide the structure for determining the
Chapters 3, 4, and 5 of the Guidelines 365 to identify final advisory guideline fine range for organizations.
a final offense level. This final offense level, The base fine consists of the greater of the amount
combined with other factors, is used to determine corresponding to the total offense level, calculated
whether the Guidelines would recommend that pursuant to the Guidelines, or the pecuniary gain

incarceration is appropriate, the length of any or loss from the offense. 371 This base fine is then
term of incarceration, and the appropriate amount multiplied by a culpability score that can either
of any fine. For corporations, the offense level is reduce the fine to as little as five percent of the
modified by factors particular to organizations as base fine or increase the recommended fine to
described in Chapter 8 to determine the applicable up to four times the amount of the base fine. 372

organizational penalty. As described in § 8C2.5, this culpability score is
For example, violations of the anti-bribery calculated by taking into account numerous factors
provisions are calculated pursuant to § 2C1.1. such as the size of the organization committing the
The offense level is determined by first identifying criminal acts; the involvement in or tolerance of
the base offense level; 366 adding additional criminal activity by high-level personnel within the
levels based on specific offense characteristics, organization; and prior misconduct or obstructive

including whether the offense involved more than behavior. The culpability score is reduced if
one bribe, the value of the bribe or the benefit the organization had an effective pre-existing
that was conferred, and the level of the public compliance program to prevent violations and if
official; 367 adjusting the offense level based on the organization voluntarily disclosed the offense,

the defendant’s role in the offense; 368 and using cooperated in the investigation, and accepted
the total offense level as well as the defendant’s responsibility for the criminal conduct. 373
criminal history category to determine the advisory
guideline range. 369 For violations of the accounting Civil Penalties
provisions assessed under § 2B1.1, the procedure is Although only DOJ has the authority to pursue
generally the same, except that the specific offense criminal actions, both DOJ and SEC have civil

characteristics differ. For instance, for violations enforcement authority under the FCPA. DOJ may
of the FCPA’s accounting provisions, the offense pursue civil actions for anti-bribery violations by
level may be increased if a substantial part of the domestic concerns (and their officers, directors,
scheme occurred outside the United States or if the employees, agents, or stockholders) and foreign
defendant was an officer or director of a publicly nationals and companies for violations while in

traded company at the time of the offense. 370 the United States, while SEC may pursue civil
actions against issuers and their officers, directors,

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