Limiting the FCPA’s Reach — Squaring Two Recent Decisions
You can always count on the FCPA paparazzi. When things are quiet in the FCPA world, they will take a mountain and turn it into a molehill. They have nothing better to write about; they have nothing better to focus on then two recent district court decisions addressing the issue of jurisdiction over foreign individuals.
The headlines reported that the government had suffered a major setback in its assertion of personal jurisdiction over one defendant. A closer look at the cases reveals a fact-intensive ruling which appears to reflect the court’s consideration of the defendant’s personal circumstances.
While the two cases reached different results, the principle inquiry in both centered on the defendants’ respective roles in the review and filing of false reports with the SEC. For FCPA practitioners, the cases represent an important area to develop facts and legal arguments when defending a foreign individual.
In SEC v. Straub, Judge Richard Sullivan denied defendants’ motions to dismiss on personal jurisdiction grounds, finding that the two officers from Magyar Telekom, PLC allegedly directed bribes to Macedonian government officials and made false representations and filings with the SEC. Judge Sullivan relied on the fact that the Magyar officers made false and misleading statements to the auditors in the preparation of the company’s financial statements. Specifically, the officers signed management representation letters affirming that Magyar’s books and records were accurate. Judge Sullivan ruled that the SEC had met its burden of establishing that the exercise of jurisdiction met constitutional due process standards since the defendants’ engaged in conduct designed to violate US securities regulations.
In SEC v. Steffen, Judge Shira Scheindlin granted a motion to dismiss one of the former Siemens officers from the pending case for alleged bribes in Argentina. Judge Scheindlin noted there was no evidence that the defendant participated directly in the review or preparation of false filings made by Siemens to the SEC.
According to the SEC, Steffen violated the FCPA by pressuring another Siemens employee in Argentina to authorize the payment of bribes, resulting in falsified quarterly and annual filings with the SEC. in rejecting the SEC’s position, Judge Scheindlin noted that Steffen did not authorize the bribes, did not direct a cover-up, or played any role in the false filings.
Judge Scheindlin also cited several other consideration which supported the court’s decision to dismiss, including the defendant’s age (74), his lack of ties to the US, and his lack of language proficiency. These real-life factors may have been at the bottom of the court’s rationale for dismissing the case.
The impact of these cases is likely to be limited. Of course, some commentators are arguing that Judge Scheindlin’s ruling is a significant limitation on the government’s civil enforcement authority. Such a view ignores the facts underlying the decision, and the numerous decision upholding the government’s broad enforcement powers.
The government continues to exercise broad criminal authority and there is nothing to suggest that FCPA enforcement will be limited by this decision.