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The SEC’s Shrinking FCPA Jurisdiction

shrinking

As stated in the DOJ/SEC issued FCPA Guidance: “SEC is responsible for civil enforcement of the FCPA over issuers and their officers, directors, employees, agents, or stockholders acting on the issuer’s behalf.”

The Guidance then states: “[A] company is an ‘issuer’ under the FCPA if it has a class of securities registered under Section 12 of the Exchange Act or is required to file periodic and other reports with SEC under Section 15(d) of the Exchange Act. In practice, this means that any company with a class of securities listed on a national securities exchange in the United States, or any company with a class of securities quoted in the over-the-counter market in the United States and required to file periodic reports with SEC, is an issuer.”

As highlighted in this post, currently there are substantially fewer issuers subject to SEC FCPA jurisdiction compared to prior decades.

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Supreme Court Questions Whether Dollar-Denominated Transactions Or Other Financial Transactions In The U.S. Are Sufficient To Assert Jurisdiction Over Foreign Corporations

supremecourt

Largely because of how the DOJ and SEC have chosen to enforce the Foreign Corrupt Practices Act (that is resolution vehicles not subjected to any meaningful judicial scrutiny), the Supreme Court has never been presented with an opportunity to interpret the FCPA (and likely never will be so long as the current state of affairs continues). Heck, you can count on one hand (and have a few fingers left over) the number of substantive FCPA decisions issued by appellate courts.

Nevertheless, in recent years the Supreme Court has issued several decisions that are FCPA relevant and in every one the court has questioned certain aspects common in FCPA enforcement. The most recent example occurred in an Alien Tort Claims Act case (Jesner v. Arab Bank) in which the majority opinion questioned in dicta whether dollar-denominated transactions or other financial transactions in the U.S. are sufficient to assert jurisdiction over foreign corporations.

Prior to discussing the recent Jesner decision, this post highlights how such allegations are common in FCPA enforcement actions against foreign corporations.

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Friday Roundup

Roundup

Motion to dismiss filed, guilty plea, role reversal, adequate procedures, for the reading stack, and viewing suggestion. It’s all here in the Friday roundup.

Motion to Dismiss Filed

As highlighted in this prior post, in November 2017 the DOJ announced that Chi Ping Patrick Ho (of Hong Kong, China) and Cheikh Gadio (of Senegal) were criminally charged with conspiring to violate the Foreign Corrupt Practices Act, violating the FCPA, conspiring to commit international money laundering, and committing international money laundering.

Earlier this week, Ho filed this motion to dismiss certain of the FCPA and money laundering charges.

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Issues To Consider From The Keppel Offshore & Marine Enforcement Action

Issues

This previous post went in-depth into the net $105.5 million Foreign Corrupt Practices Act enforcement action against Keppel Offshore & Marine (and a related entity) regarding various bribery schemes in Brazil. This post continues the analysis by highlighting additional issues to consider.

FCPA First

The enforcement action against Keppel Offshore & Marine is believed to be the first FCPA enforcement action ever against a company based in Singapore.

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FCPA Flash – A Conversation With Robert Luskin Regarding FCPA Enforcement Actions Against Foreign Companies

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Robert Luskin (Paul Hastings). Luskin has a wealth of experience representing foreign companies (including Technip, Total, Alstom and SBM Offshore) in FCPA enforcement actions. During the podcast, Luskin: (i) elaborates on his previous comments that foreign corporations in FCPA inquiries have real concerns about “whether U.S. lawyers are really defense lawyers or former prosecutors in a better suit” and how some FCPA practitioners are not willing to be adverse to the DOJ; (ii) discusses legal and policy issues present in FCPA enforcement actions against foreign companies; and (iii) opines whether the FCPA has been successful in achieving its objectives including whether any reform is desirable.

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