The rise of the prosecutorial efforts in foreign corruption: Lessons learned from recent FCPA cases

The FCPA has evolved since its enactment in 1977 to become one of the most aggressive extra-territorial laws in the US. Although recent penalties have made the headlines and the DOJ and SEC have pursued more  criminals in the last 5 years than they have since the law was created in 1977, a lot of legal maneuvering has occurred behind the scenes to permit the US government's newly invigorated approach. US Courts have been expanding the scope and jurisdiction of the law in ways hitherto unprecedented.

The Department of Justice (“DOJ”) and the Security Exchange Commission (“SEC”) have been increasingly aggressive in their pursuit of FCPA violators in recent years. As Ong points out:

“From 1978 to 2000, the SEC and DOJ averaged approximately three FCPA prosecutions per year… [from] 2003 to 2007, there were an average of approximately 20 FCPA investigations. 2008 saw open investigations involving 82 corporations and 2009 …has been described as the most active FCPA trial year yet.” (Ong, 3)

What may be less obvious are the interesting legal maneuvers that said enforcers are using to broaden the scope of crimes and criminals that fall under the jurisdiction of the FCPA. Ong discusses what some of these ‘prosecutorial innovations’ are, using recent case-law as a support. The changes pertain to jurisdiction, evidentiary burdens and affirmative defenses, fines and punishments, broadened definitions of terms, and subsidiary liability, among others. US Federal and State courts are showing an increasing willingness to punish FCPA violators to the extent of the law- and beyond- as Ong dutifully lists them in a straight-forward manner.

Citation: A.V.Y Ong, "The Rise of the Prosecutorial Efforts in Foreign Corruption: Lessons Learned from Recent FCPA Cases", 24 March 2010. Available online at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577444