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Stimler Enforcement Action – The Consequential E-Mail

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Yesterday’s post highlighted the Foreign Corrupt Practices Act (and related) enforcement action against Anthony Stimler (a U.K. citizen and resident who was a trader at Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland).

The FCPA anti-bribery charge against Stimler invoked the so-called 78dd-3 prong of the statute which has the most demanding jurisdictional hook.

Specifically, “while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

Similar to several other FCPA enforcement actions, the Stimler information alleged:

“On or about October 3, 2014, in response to the information communicated by Co-Conspirator 6, Stimler caused Subsidiary 2 to send a wire transfer of approximately $300,000 (the “Payment”) from Subsidiary 2’s bank account in Switzerland, through a bank in the Southern District of New York, to Intermediary Company 2’s bank account in Cyprus.”

[…]

“On or about May 5, 2015, Stimler caused Subsidiary 2 to pay Intermediary Company 2’s invoice through a wire transfer of approximately $50,000 from Subsidiary 2’s bank account in Switzerland, through a bank in the Southern District of New York, to Intermediary Company 2’s bank account in Cyprus.”

Those allegations alone were insufficient to meet the “while in the territory” requirement of 78dd-3. (See here for an instance of judicial scrutiny in which a federal court judge concluded that the act of sending a DHL package from the U.K. to the U.S. in furtherance of an alleged bribery scheme was insufficient to meet 78dd-3’s requirement).

However, the Stimler information further alleged:

“On or about April 20, 2015, while in the United States, Stimler received an email in which Co-Conspirator 6 offered to pay a bribe to a Nigerian official of approximately $50,000 per oil cargo for four cargoes of NNPC oil to be delivered in May and June 2015.”

On or about April 20, 2015, while in the United States, Stimler replied to Co-Conspirator 6’s email, expressing interest in one of the June 2015 NNPC oil cargoes.”

In short, the sole jurisdictional basis for the FCPA charges against Stimler appears to be an e-mail exchange in furtherance of the alleged bribery scheme while he was in the U.S. in April 2015.

That’s the legal answer.

But what about the policy answer?

Just because the DOJ can bring an FCPA enforcement action against a U.K. national for allegedly bribing a Nigerian official, should it? Is the U.K. the most appropriate jurisdiction to bring such an enforcement action?

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