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Corporate Social Responsibility (IVOR nr. 77) 2010/5.3.3.3
5.3.3.3 Penalties
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS364591:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Sections 15U.S.C.§§78dd-2(g), 78dd-3(e).
Sections 15U.S.C.§§78dd-2(g)(3), 78dd-3(e)(3), 78ff(c)(3).
US Department of Justice, 'Criminal Resource Manual: 1019 Sanctions against bribery', November 2000, at: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01019.htm, accessed on 1 August 2010; The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) expanded the list of civil forfeiture predicates to include each offence listed as a specified unlawful activity in the Money Laundering Control Act, 18U.S.C.§1956(c)(7). CAFRA further provided for criminal forfeiture for all offenses for which civil forfeiture was authorised. See 28U.S.C.§2461(c). Accordingly, any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of the FCPA, or a conspiracy to violate the FCPA, may be forfeited. See 18U.S.C.§981.
Section 15U.S.C.§78ff(a).
Sections 15U.S.C.§§78dd-2(g)(1)(B), 78dd-2(g)(2)(B), 78dd-3(e)(1)(B) and 78dd-3(e)(2)(B).
The penalties under the FCPA are substantial. Criminal and civil penalties can be imposed.
Criminal penalties include a fine of up to USD 2,000,000 per violation of an anti-bribery provision committed by a company or other business entity, and a fine of up to USD 100,000 per violation and imprisonment for up to five years, or both, per violation committed by officers, directors, stockholders, employees, and agents.1 Fines imposed against individuals may not be paid by their employer or principal.2 Under the Alternative Fines Act, the actual fine imposed may be up to twice the benefit that the defendant sought to obtain by making the corrupt payment. A violation of the FCPA may also result in the civil and criminal forfeiture of assets.3 Criminal penalties under the FCPA for a violation of the books and records provisions include a fine of up to USD 5,000,000, or imprisonment not exceeding 20 years, or both. When the violation is made by a company rather than a natural person, a fine of up to USD 25,000,000 may be imposed.4 Again the Alternative Fines Act applies which means that the monetary fine can be increased to up to twice the benefit that the defendant sought to obtain through the violation.
Civil penalties are also included in the FCPA: per violation of an anti-bribery provision a fine of up to USD 10,000 can be imposed against the company as well as against any officer, director, employee, or agent of a firm, or stockholder acting on behalf of the company.5
According to the Department of Justice Prosecution Policy (Thompson Memo 2003 and subsequent revisions), a corporation will not be absolved from criminal liability by having an ' anti-corruption programme' in place, but this may provide factors that can be used in the determination by federal prosecutors whether to charge a company or only employees and agents with a crime. Relevant factors are whether the compliance programme is merely a 'paper programme' or is designed and implemented effectively; whether the programme is being enforced; whether the company has sufficient staff to audit and evaluate the results of its compliance efforts and whether employees have been informed about the programme and are convinced of the company's commitment to it. Furthermore, the US Federal Sentencing Guidelines Criteria (as amended from time to time, lastly in 2004) establish minimum compliance and ethics programme requirements for companies seeking to mitigate penalties for corporate misconduct. They make the expectation explicit that companies promote a culture of ethical conduct and commitment to compliance with the law, tailor programmes based on compliance risks, and periodically evaluate programme effectiveness.