Lest there be any confusion, I start this post with the basics.
The Foreign Corrupt Practices Act is a criminal (as well as civil) statute. Those that violate the FCPA ought to be charged. Those who are found guilty of FCPA violations are not worthy of commendation.
Nevertheless, those who put the DOJ or SEC to its burden of proof by contesting FCPA charges perform – in a way – a public service that ought to be recognized by forcing the FCPA enforcement agencies to defend its theories in court.
By recognized, I simply mean that it needs to be recognized that without FCPA individual defendants there would be no FCPA case law in the FCPA’s approximate 45 years.
The unfortunate reality is that it takes individual defendants to go through unpleasant experiences, and for the stars to align in terms of the individual’s risk tolerance and financial resources (or insurance coverage), for there to be any FCPA case law.
Because of Stuart Carson, Hong Carson, Paul Cosgrove, David Edmonds, Keith Lindsey, Steve Lee, Joel Esquenazi and Carlos Rodriguez – there is case law concerning the “foreign official” element.
Because of Eric Mattson, James Harris, David Kay and Douglas Murphy – there is case law concerning the “obtain or retain” business element.
Because of Frederic Bourke, David Kay and Douglas Murphy – there is case law concerning mens rea issues.
Because of Pankesh Patel, Elek Straub, Andras Balogh, Tamas Morvai, and Herbert Steffen – there is case law concerning jurisdiction issues relevant to foreign nationals.
Because of Mark Jackson and David Ruehlen – there is case law concerning facilitating payments and statute of limitations.
Because of Frederic Bourke – there is case law concerning the local law affirmative defense.
Because of Lawrence Hoskins – there is case law concerning conspiracy issues and the term “agent” in the FCPA.
Because of Roger Ng – there is case law concerning the internal controls provisions.
Regardless of the facts and circumstances leading to FCPA charges, the above individual defendants have indeed done a public service that ought to be recognized, because without them, there would be no FCPA case law.
