management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.” 15 U.S.C. § 78m(b)(2)(B) (2006). 23 15 U.S.C. § 78m(b)(7). 24 D EMING , supra note 13, at 22. 25 Id. at 44. 26 U.S. Dep’t of Justice, Lay-Person’s Guide to the FCPA, available at . 27 15 U.S.C. § 78ff(c)(1)(A) (2006). 28 D EMING , supra note 13, at 43. 29 U.S. Sentencing Guidelines Manual § 8C4.6 (2005). 7
take into account any history of prior violations, the monetary gain obtained by the company and any steps taken by the offender to prevent violations. 30 The court may warrant an upward departure (i.e., imposition of a sentence harsher than the Guidelines propose), if “the organization, in connection with the offense, bribed or unlawfully gave a gratuity to a public official, or attempted or conspired to bribe or unlawfully give gratuity to a public official.” 31 Parent companies may be liable and face criminal sanctions if found responsible for authorizing, directing or controlling the questionable acts of foreign subsidiaries or intermediaries. 32 While officers, directors, stockholders, employees and agents of the company may also face criminal sanctions for violating the Act, companies may not pay for any fines that are imposed on individuals. 33 Civil Sanctions The SEC is the enforcement authority for civil sanctions under the FCPA. While the DOJ may pursue civil enforcement as well, their focus has been almost entirely on criminal violations. 34 There is no knowledge requirement for a civil enforcement action for violating the accounting and record-keeping provisions and the preponderance of evidence must be “beyond a reasonable doubt.” Companies can face up to $10 thousand in civil sanctions for violating the Act. 35 Similar to criminal sanctions, while officers, directors, stockholders, employees and agents of the company may also face civil sanctions for violating the Act, companies may not pay for any fines that are imposed on individuals. 36 Other Penalties 30 Id. 31 Id. 32 15 U.S.C. § 78ff(c)(1)(A); see also U.S. Dep’t of Justice, Lay-Person’s Guide to the FCPA, supra , note 26, at 8. 33 15 U.S.C. § 78ff(c)(3). 34 D EMING , supra note 13, at 41. 35 15 U.S.C. § 78ff(c)(1)(B). 36 15 U.S.C. § 78ff(c)(3). 8
In addition to criminal and civil sanctions, companies may face other penalties as a result of violating provisions of the FCPA. Under the Guidelines, the court may order probation for up to five years if the company has more than fifty employees and the company does not have an effective compliance and ethics program, or if the company had engaged in similar misconduct within five years prior. 37 Companies may also receive sanctions for violating the Organization of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD Convention” or “the Convention”), 38 as
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