Joel Androphy, left, is the lawyer who led John O’Shea’s defense team to a stunning win.
On Monday, Judge Lynn Hughes tossed all twelve substantive FCPA counts against O’Shea (the judge’s order is below).
We asked Androphy what the case means for future FCPA prosecutions.
“The government will have to alter its FCPA strategy in prosecuting individuals,” he said. “Proving one to be a foreign official requires more than just a recitation by a lay witness; it requires expert testimony.”
Should others facing FCPA charges be encouraged? Or was this case a special circumstance? A fluke result?
According to Androphy, it’s not easy for the government to prosecute these cases. “It rarely has the ability to obtain the testimony of foreign witnesses,” he said. “It is difficult to obtain foreign documents. Defense lawyers should put the government to its burden of proof and not confess without a trial.”
What about public companies? For the past two decades, none have gone to trial. Will O’Shea encourage them to fight FCPA charges?
“It is unlikely that public corporations will try these cases,” Androphy said. “Paying money is an easier exit than the risk of conviction and more money.”