FCPA Statute of Limitations—When are bygones really gone?

FCPA Statute of Limitations—When are bygones really gone?

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March 23, 2009

In light of the vast sums at stake in FCPA cases, many companies are asking when, if ever, past criminal acts are truly behind them. We asked our expert on all-things-DoJ, Billy Jacobson, and he responded with the DoJ perennial: It depends…

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The FCPA itself does not contain a statute of limitations provision. Thus, the “catch-all” provision at 18 U.S.C. § 3282 (a) supplies a five-year statute of limitations. Because the statute of limitations in criminal cases begins to run when the crime is “complete,” Pendergast v. United States, 317 U.S. 412, 418 (1943), prosecution for an FCPA bribery violation would be time-barred five years after the bribe scheme has ended (usually after the payment of the bribe).

But the statute of limitations analysis does not stop there. The government routinely charges companies and individuals with conspiracy to violate the FCPA in place of or in addition to substantive FCPA charges. And, by charging a conspiracy offense, the government can effectively stretch the statute of limitations period well beyond five years. This is because with conspiracy offenses, the government only needs to prove that one act in furtherance of the conspiracy occurred during the limitations period. See, e.g., United States v. Milstein, 401 F.3d 53, 71 (2d Cir. 2005). By charging conspiracy, the government was able to include in the recent charges against Siemens’ subsidiaries conduct that occurred as far back as 1997—some eleven years prior to the date that the criminal information was filed in late-2008. Similarly, in the recent KBR/Halliburton matter, the government was able to reach criminal conduct that occurred as far back as 1994, although the five-year period generally applicable to those acts would ordinarily have expired in 1999.

Additionally, the FCPA’s five-year statute of limitations period may be extended by a tolling agreement. In fact, the government often asks companies that cooperate with its investigations for such agreements during the course of the investigation and will consider such agreements to be part of the company’s cooperation, thereby causing some companies to feel that they do not have any choice but to agree to the tolling. The government also routinely makes tolling agreements part of its deferred prosecution agreements giving the government the ability to prosecute the company should the deferred prosecution agreement be violated by the company after such time as the original statute of limitations has expired.

Filing mutual legal assistance (“MLA”) requests with foreign governments will also toll the statute of limitations upon a proper motion by the government. See 18 U.S.C. § 3292. Tolling for MLA requests will continue until the foreign government has completed its cooperation with the request or for a maximum of three years. The DOJ makes great use of MLA requests in FCPA cases and by doing so can extend its time for filing charges by up to three years.

Thus, while the FCPA is subject to a five-year statute of limitations, the government has several tools available to lengthen that period and reach conduct that occurred many years prior to charging. Companies must closely examine their past actions before concluding that they are, temporally, beyond the reach of the government.

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FCPA Statute of Limitations—When are bygones really gone?

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