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Ripe For Challenge

Attorney General Eric HolderA reader sent a thoughtful comment about our post, FCPA Conspiracy Theories.

If you missed it, Larry from DC (probably not his or her real name) said:

This is an important post, due to the abundant prosecutorial advantages of bringing conspiracy FCPA charges vis-a-vis substantive FCPA charges. We’ve seen this time and time again in major FCPA enforcement matters over the past several years.

It would be interesting to find out who the DOJ prosecutor referenced by “Pete from DC” actually is. The Department typically doesn’t advertise on the conspiracy issue, as this is one area (at least in terms of certain statute of limitations (SOL) and jurisdictional nuances) that could potentially make for a ripe judicial challenge, under the right circumstances.

Whatever the case, the Snamprogetti matter is a fascinating example of FCPA conspiracy, but also a relatively complex one, as it involved both conspiracy and aiding and abetting charges. As the Information states, the Department alleged that employees and agents of Snamprogetti were causing wire transfers to be sent to U.S. accounts in New York.

As such, Snamprogetti may have been vulnerable to substantive FCPA jurisdiction, standing alone, under jurisdiction established by the 1998 FCPA amendments for non-domestic concerns/issuers, as codified at 78dd-3 (although it appears that the Department had SOL concerns to contend with in the case, given the time frame of the bulk of the activity in question, which may have necessitated the conspiracy route).

That aside, the Snamprogetti case also highlights (or perhaps cautions) just how easy it can be for the Department to tack on an FCPA “aiding and abetting” charge in what is essentially a conspiracy enforcement action against a foreign, non-issuer (involved in a joint venture with a US domestic concern).

As the FCPA Blog has noted on multiple occasions, an aider and abettor is punishable as a principal, meaning the entity is subject to the same FCPA penalties for the crime committed by its agent, as though the aider and abettor committed the crime itself. The case is loaded with academic and practical FCPA nuggets!

— Larry from DC

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