FCPA: Tolling the Statute of Limitations

From the perspective of providing legal advice concerning the FCPA, attorneys, in-house counsel, accountants, and consultants can unwittingly place misplaced reliance on the FCPA’s five-year statute of limitations. For the Justice Department, one well-recognized means of tolling the statute of limitations is to invoke the terms of 18 U.S.C. § 3292 in conjunction with a request for evidence from abroad. Upon the proper invocation of 18 U.S.C. § 3292, the statute of limitations may be extended for a period of up to three years.

Given the limited amount of litigation involving 18 U.S.C. § 3292, many aspects of its provisions have yet to be subject to judicial interpretation. As a result, special care needs to be exercised when relying upon its terms and how it is likely to be interpreted. Of particular note are the decisions holding that a tolling request under 18 U.S.C. § 3292 is not limited to a specific individual or entity under investigation at the time of the request.[1] The statute of limitations is tolled for offenses under investigation by a grand jury and for which foreign evidence has been officially requested.

Even in the absence of awareness of an investigation, an individual or entity cannot assume that the statute of limitations has not been tolled. “[B]ecause the statute is offense-specific, not person-specific, investigated individuals are not entitled to notice of what specific actions the grand jury was taking, thereby permitting the government to obtain a tolling order through an ex parte proceeding.”[2]

Individuals and entities may not be subject to investigation at the time the request is made. But future developments may make an individual or entity subject to the investigation for which evidence was sought. “[T]he government has no control over who might be involved in the offense under investigation. A foreign evidence request for offenses under investigation may identify persons who are involved in the offenses, but who were previously unknown to the government.”[3]

For international law attorneys specializing in the FCPA or global anti-bribery compliance issues, the practical impact of these interpretations is the need to be wary of relying upon the five-year statute of limitations. Whether it be in the context of determining whether a violation occurred, assessing risk, or conducting due diligence, the five-year statute of limitations should not be determinative.


[1]E.g., United States v. Ratti, 365 F. Supp. 649, 656 (D. Md. 2005); United States v. Trainor, 277 F.Supp.2d 1278, 1283 (S.D.Fla.2003), aff’d, 376 F.3d 1325 (11th Cir.2004);United States v. Neill, 952 F.Supp. 831, 833-34 (D.D.C. 1996).

[2]United States v. Castroneves, 2009 WL 528251 at *4 (S.D. Fla., Mar. 2, 2009).

[3]Neill, supra at 834.

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