Additional Principles of Criminal Liability for Anti-Bribery Violations: Aiding and Abetting and Conspiracy
Under federal law, individuals or companies that aid or abet acrime, including an FCPA violation, are as guilty as if they had directly committed the offense themselves. The aiding and abetting statute provides that whoever “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission,” or “will- fully causes an act to be done which if directly performed by him or another would be an offense against the United States,’ is punishable as a principal.'” Aiding and abetting is not an independent crime, and the government must prove that an underlying FCPA violation was committed.*”
Individuals and companies, including foreign nation- als and companies, may also be liable for conspiring to violate the FCPA—i.e., for agreeing to commit an FCPA violation—even if they are not, or could not be, indepen- dently charged with a substantive FCPA violation. For instance, a foreign, non-issuer company could be convicted of conspiring with a domestic concern to violate the FCPA. Under certain circumstances, it could also be held liable for the domestic concern’s substantive FCPA violations under Pinkerton v. United States, which imposes liability on a defendant for reasonably foreseeable crimes committed by a co-conspirator in furtherance of a conspiracy that the defendant joined.”
A foreign company or individual may be held liable for aiding and abetting an FCPA violation or for conspiring to violate the FCPA, even if the foreign company or indi- vidual did not take any act in furtherance of the corrupt payment while in the territory of the United States. In con- spiracy cases, the United States generally has jurisdiction over all the conspirators where at least one conspirator is an issuer, domestic concern, or commits a reasonably fore- seeable overt act within the United States.” For example, if a foreign company or individual conspires to violate the FCPA with someone who commits an overt act within the United States, the United States can prosecute the foreign company or individual for the conspiracy. The same prin-
ciple applies to aiding and abetting violations. For instance,
The FCPA:
Anti-Bribery Provisions
even though they took no action in the United States, Japanese and European companies were charged with con- spiring with and aiding and abetting a domestic concern’s
ECPA violations.?”
Additional Principles of Civil Liability for Anti-Bribery Violations: Aiding and Abetting and Causing
Both companies and individuals can be held civilly liable for aiding and abetting FCPA anti-bribery violations if they knowingly or recklessly provide substantial assis- tance to a violator.™ Similarly, in the administrative pro- ceeding context, companies and individuals may be held liable for causing FCPA violations.” This liability extends to the subsidiaries and agents of US. issuers.
In one case, the U.S. subsidiary of a Swiss freight for- warding company was held civilly liable for paying bribes on behalf of its customers in several countries.” Although the US. subsidiary was not an issuer for purposes of the FCPA, it was an “agent” of several US. issuers. By paying bribes on behalf of its issuers’ customers, the subsidiary both directly
violated and aided and abetted the issuers’ FCPA violations.
What Is the Applicable Statute of Limitations?
Statute of Limitations in Criminal Cases
The FCPA’s anti-bribery and accounting provisions do not specify a statute of limitations for criminal actions. Accordingly, the general five-year limitations period set forth in 18 US.C. § 3282 applies to substantive criminal violations of the Act.?” In cases involving FCPA conspiracies, the govern-
ment may be able to reach conduct occurring before the
five-year limitations period applicable to conspiracies
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