The widening FCPA dragnet: The increasing pursuit of individuals and foreign persons and expansive use of legal theories

Abstract

Foreign issuers, subsidiaries, and individuals increasingly are targets of US Foreign Corrupt Practice Act (FCPA) investigations and enforcement. US authorities are using expansive jurisdictional theories in cases with only minimal connections to the USA. Prosecution of individuals is now a long-term enforcement priority. For example, US authorities brought more defendants to trial in FCPA cases in 2009 than in the preceding five years combined, and obtained convictions on at least some counts in each trial. Several recent cases also reflect expansive interpretations of anti-corruption standards and related provisions of US law. US authorities are regularly asserting violations of the accounting provisions or ancillary statutes, even when the elements of an anti-bribery offence are not present. As a result, the extraterritorial reach of the FCPA and related laws continues to grow. This trend, coupled with new whistleblower bounty provisions and other enforcement initiatives, make it as important as ever that companies operating outside the USA adopt and fully implement effective compliance programmes.