First-Time Criminal Internal Controls Charges

In an earlier post here we said: “The Siemens Information included the first ever criminal internal controls charge brought by the Justice Department. Although the SEC routinely includes internal controls charges in its civil resolutions, the DOJ has never done so.”

An astute reader responded: “I assume you say that because 15 U.S.C. Section 78m(b)(5) was listed in the charging documents? Have not other DOJ FCPA enforcement actions (i.e. Flowserve, AB Volvo etc.) included 78m(b)(5) charges as well?”

Here’s the answer: The FCPA’s books and records provisions are found in 15 U.S.C. Section 78m(b)(2)(A), and are separate and distinct from the FCPA’s internal controls provisions, which are found in 15 U.S.C. Section 78m(b)(2)(B). The confusion is that the “knowing” failures to violate both those provisions fall within the same statutory provisions – 15 U.S.C. Section 78m(b)(5) and 78ff(a). However, the DOJ has never charged 78m(b)(5) and 78ff(a) as part of an internal controls violation – only as a books and records violation. Count 1 of the Siemens AG information charges violations of 78m(b)(2)(B), which has never been done, as well as 78m(b)(5) and 78ff(a). Count 2 charges violations of 78m(b)(2)(A), 78m(b)(5), and 78ff(a), which the DOJ has done many times before. The two counts have two statutory provisions in common – the difference is 78m(b)(2)(A) v. 78m(b)(2)(B).

The text of the Foreign Corrupt Practices Act can be found here.
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