DOJ’s Use of Expansive Legal Theories Broaden FCPA Jurisdiction

Despite the government’s increased enforcement of the FCPA, the actions are seldom litigated in federal court. The government increasingly enters into non-prosecution agreements (“NPAs”) and deferred prosecution agreements (“DPAs”) with companies in which the government agrees not to prosecute in exchange for proof of continuing compliance. Actions not resolved through NPAs or DPAs are typically resolved through plea agreements or settlements, usually accompanied with large criminal or civil monetary penalties. There is very little case law interpreting the breadth of the Act, leaving DOJ and SEC free to pursue aggressive legal theories that have been largely untested in federal court. This article discusses some of the government’s most recent theories and examines the increased expansion of the FCPA’s scope.