Page 85 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

government’s investigation; the company’s What Are the Different Types of
remediation; the collateral consequences that Resolutions with SEC?
would flow from the resolution; the adequacy
of prosecutions against individuals; and the Civil Injunctive Actions and Remedies
adequacy of remedies, such as civil or regulatory In a civil injunctive action, SEC seeks a court

enforcement actions. order enjoining the defendant from future violations
Pursuant to these guidelines, DOJ has of the laws charged in the action. Civil contempt
declined to prosecute both individuals and sanctions, brought by SEC, are remedial rather than
corporate entities in numerous cases based on punitive in nature and serve one of two purposes:
the particular facts and circumstances presented to compensate the party injured as a result of the
in those matters, taking into account the available violation of the injunction or force compliance with

evidence. 408 To protect the privacy rights and other the terms of the injunction.
interests of the uncharged and other potentially Where a defendant has profited from a
interested parties, DOJ has a long-standing policy violation of law, SEC can obtain the equitable
not to provide, without the party’s consent, non- relief of disgorgement of ill-gotten gains and pre-
public information on matters it has declined to judgment interest and can also obtain civil money

prosecute. To put DOJ’s declinations in context, penalties pursuant to Sections 21(d)(3) and 32(c) of
however, DOJ has recently declined several dozen the Exchange Act. SEC may also seek ancillary relief
cases against companies where potential FCPA (such as an accounting from a defendant). Pursuant
violations were alleged. to Section 21(d)(5), SEC also may seek, and any
In addition to the Principles of Federal federal court may grant, any other equitable relief
Prosecution of Business Organizations, as that may be appropriate or necessary for the benefit

discussed above, DOJ has implemented the CEP of investors, such as enhanced remedial measures
to provide additional incentives and benefits or the retention of an independent compliance
to companies that voluntarily self-disclose consultant or monitor.
misconduct, fully cooperate, and fully remediate,

including a presumption of a declination (with Civil Administrative Actions and Remedies
the disgorgement of ill-gotten profits), absent SEC has the ability to institute various types
aggravating circumstances. A declination pursuant of administrative proceedings against a person or
to the CEP is a case that would have been prosecuted an entity that it believes has violated the law. This
or criminally resolved except for the company’s type of enforcement action is brought by SEC’s
voluntary disclosure, full cooperation, remediation, Enforcement Division and is litigated before an SEC

and payment of disgorgement, forfeiture, and/ administrative law judge (ALJ). The ALJ’s decision
or restitution. If a case would have been declined is subject to appeal directly to the Securities and
in the absence of such circumstances, it is not Exchange Commission itself, and the Commission’s
considered as a declination pursuant to the CEP. decision is in turn subject to review by a U.S. Court
Declinations awarded under the CEP are made of Appeals.

public on the DOJ/FCPA website.

77