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New FCPA Decision Limits DOJ's International Reach
In recent years, we have seen the Department of Justice (DOJ) expand its international focus, as it looks to punish foreign nationals, often for conduct that occurred almost entirely outside of the territorial borders of the United States, such as in the Libor and FX benchmark cases. See, United States v. Allen, 864 F.3d 63, 90 (2d Cir. 2018) (reversing conviction where compelled testimony in the United Kingdom was used against the defendants, both UK nationals, who were "hale[d] … into the courts of the United States to fend for their liberty"); United States v. Hayes, 118 F. Supp. 3d 620, 628-29 (S.D.N.Y. 2015) (prosecution of Swiss and UK nationals in U.S. courts where crime involved U.S. wire communications).
DOJ's eagerness to look outside of the United States in its investigations, however, has not been matched by judicial enthusiasm concerning the extraterritorial application of U.S. law. On the contrary, we have seen a string of Supreme Court decisions over the past decade that limit the reach of U.S. law. See, e.g., RJR Nabisco v. European Community, 136 S. Ct. 2090, 2110-11 (2016) (limiting the international reach of the Racketeer Influenced and Corrupt Organizations Act); Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 1669 (2013) (limiting the international reach of the Alien Tort Claims Act); Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 273 (2010) (holding that section 10(b) only reaches misconduct in connection with the purchase or sale of a security listed on an American stock exchange, or a purchase or sale in the United States).
The reach of the Foreign Corrupt Practices Act (FCPA) has long been a central and unresolved question in this back-and-forth between the courts and the government. By its very nature, the FCPA is meant to address conduct that occurs at least in part outside of the United States: it applies only to the bribery of foreign government officials, not to bribery of U.S. government officials. In addition, the statute was enacted to level the playing field by prohibiting bribery not only by U.S. persons and firms, but by market participants in other countries who either worked for U.S. firms or who engaged in prohibited conduct within the United States.
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