9-47.110
Policy Concerning Criminal Investigations and Prosecutions of the
Foreign Corrupt Practices Act
No investigation or prosecution of cases involving alleged
violations of the antibribery provisions of the Foreign Corrupt
Practices Act (FCPA) of 1977 (15 U.S.C. §§ 78dd-1,
78dd-2, and 78dd-3) or of related violations of the FCPA's record
keeping provisions (15 U.S.C. § 78m(b)) shall be instituted
without the express authorization of the Criminal Division.
Any information relating to a possible violation of the FCPA
should be brought immediately to the attention of the Fraud Section
of the Criminal Division. Even when such information is developed
during the course of an apparently unrelated investigation, the
Fraud Section should be notified immediately. Close coordination of
such investigations and prosecutions with the Department of State,
the United States Securities and Exchange Commission (SEC) and
other interested agencies is essential. Moreover, pursuant to the
1988 amendment to the FCPA, the Department has established a FCPA
Opinion Procedure. See the Criminal Resource
Manual at 1016. As part of this procedure, which is
administered by the Fraud Section, the Assistant Attorney General
(AAG) for the Criminal Division reviews proposed business conduct
that may constitute a violation of the Act and makes a binding
decision on whether the Department will take an enforcement action
should the transaction proceed further.
Unless otherwise agreed upon by the AAG, Criminal Division,
investigations and prosecutions of alleged violations of the
antibribery provisions of the FCPA will be conducted by Trial
Attorneys of the Fraud Section. Prosecutions of alleged violations
of the record keeping provisions, when such violations are related
to an antibribery violation, will also be conducted by Fraud
Section Trial Attorneys, unless otherwise directed by the AAG,
Criminal Division.
The investigation and prosecution of particular allegations of
violations of the FCPA will raise complex enforcement problems
abroad as well as difficult issues of jurisdiction and statutory
construction. For example, part of the investigation may involve
interviewing witnesses in foreign countries concerning their
activities with high-level foreign government officials. In
addition, relevant accounts maintained in United States banks and
subject to subpoena may be directly or beneficially owned by senior
foreign government officials. For these reasons, the need for
centralized supervision of investigations and prosecutions under
the FCPA is compelling.
[updated November 2000]
9-47.130
Civil Injunctive Actions
The SEC has authority to obtain civil injunctions against
future violations of the record keeping and antibribery provisions
of the FCPA by issuers. See 15 U.S.C. § 78u. Civil
injunctions against violations of the antibribery provisions by
domestic concerns and foreign nationals and companies shall be
instituted by Trial Attorneys of the Fraud Section in cooperation
with the appropriate United States Attorney, unless otherwise
directed by the AAG, Criminal Division. See §§
78dd-2(d), 78dd-3(d).
[updated November 2000]
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