Banks are becoming more vulnerable to seizures of customer assets by the U.S. government, as asset forfeiture actions, an enforcement tool once reserved for drug dealers and money launderers, are increasingly being brought against legitimate companies in foreign corrupt practices cases.
To enforce the FCPA's anti-bribery provisions, the federal government is authorized to pursue forfeiture - administratively, civilly or criminally - of the proceeds traceable to criminal violations of the FCPA. Proceeds includes any property, real or personal, tangible or intangible, that the wrongdoer would not have obtained or retained but for the crime.
For example, a company's profits from its contract with a foreign government agency, allegedly obtained as a result of corruptly "wining and dining" the contract procurement official, could be subject to forfeiture.
When the government seeks forfeiture in a criminal proceeding, it can also pursue substitute assets - meaning any of the defendant's property, not just the specific assets tied to the crime. Banks may, therefore, be vulnerable to having assets seized from their customers' accounts even if the actual proceeds of the allegedly criminal conduct do not reside in the wrongdoer's account.
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