Excerpt from DOJ/FCPA sentencing guidelines outlining penalty calculations

69 to determine whether the Guidelines would recommend that incarceration is appropriate, the length of any term of incarceration, and the appropriate amount of any fine. For corporations, the offense level is modified by factors par- ticular to organizations as described in Chapter 8 to deter- mine the applicable organizational penalty. For example, violations of the anti-bribery provi- sions are calculated pursuant to § 2C1.1. The offense level is determined by first identifying the base offense level; adding additional levels based on specific offense charac- teristics, including whether the offense involved more than one bribe, the value of the bribe or the benefit that was con- ferred, and the level of the public official;®° adjusting the offense level based on the defendant's role in the offense;*! and using the total offense level as well as the defendant’s criminal history category to determine the advisory guide- line range.*” For violations of the accounting provisions assessed under § 2B1.1, the procedure is generally the same, except that the specific offense characteristics differ. For instance, for violations of the FCPA’s accounting pro- visions, the offense level may be increased if a substantial part of the scheme occurred outside the United States or if the defendant was an officer or director of a publicly traded company at the time of the offense.?? For companies, the offense level is calculated pur- suant to §§ 2C1.1 or 2B1.1 in the same way as for an individual—by starting with the base offense level and increasing it as warranted by any applicable specific offense characteristics. The organizational guidelines found in Chapter 8, however, provide the structure for determining the final advisory guideline fine range for organizations. The base fine consists of the greater of the amount corresponding to the total offense level, calcu- lated pursuant to the Guidelines, or the pecuniary gain or loss from the offense.>** This base fine is then multiplied by a culpability score that can either reduce the fine to as little as five percent of the base fine or increase the recom- mended fine to up to four times the amount of the base fine.’ As described in § 8C2.5, this culpability score is calculated by taking into account numerous factors such as the size of the organization committing the criminal acts; the involvement in or tolerance of criminal activ- ity by high-level personnel within the organization; and prior misconduct or obstructive behavior. The culpability score is reduced if the organization had an effective pre- existing compliance program to prevent violations and if the organization voluntarily disclosed the offense, cooper- ated in the investigation, and accepted responsibility for the criminal conduct.?*° Civil Penalties Although only DOJ has the authority to pursue crim- inal actions, both DOJ and SEC have civil enforcement authority under the FCPA. DOJ may pursue civil actions for anti-bribery violations by domestic concerns (and their officers, directors, employees, agents, or stockholders) and foreign nationals and companies for violations while in the United States, while SEC may pursue civil actions against issuers and their officers, directors, employees, agents, or stockholders for violations of the anti-bribery and the accounting provisions.**” For violations of the anti-bribery provisions, cor- porations and other business entities are subject to a civil penalty of up to $16,000 per violation.>* Individuals, including officers, directors, stockholders, and agents of companies, are similarly subject to a civil penalty of up to $16,000 per violation,**? which may not be paid by their employer or principal3® For violations of the accounting provisions, SEC may obtain a civil penalty not to exceed the greater of (a) the gross amount of the pecuniary gain to the defendant as a result of the violations or (b) a specified dollar limitation. The specified dollar limitations are based on the egregious- ness of the violation, ranging from $7,500 to $150,000 for an individual and $75,000 to $725,000 for a company.* SEC may obtain civil penalties both in actions filed in fed- eral court and in administrative proceedings3” Collateral Consequences In addition to the criminal and civil penalties described above, individuals and companies who violate the FCPA may face significant collateral consequences, including suspension HOUSE_OVERSIGHT_022571