One of the big frustrations companies have with the Justice Department’s ongoing Foreign Corrupt Practices Act (FCPA) crackdown is that there’s so little case law on the subject. Because the vast majority of cases are resolved through deferred-prosecution agreements, there has been very little judicial review of the DOJ’s broad application of the law. Last fall the U.S. Chamber of Commerce went so far as to issue a report complaining that without more test cases, the DOJ essentially serves as judge as well as prosecutor in FCPA matters.
Well, a trickle of FCPA cases is finally making its way before the judiciary, and so far the decisions are only serving to support the DOJ’s global attack on corruption.
“They have almost identical issues: Does the government interpretation of foreign official overreach, and is the statute void for vagueness because it doesn’t give you any notice of when you violate it?” says Funk.
Like Noriega, these cases face an uphill battle, but any clarification on the foreign official question will be useful to companies doing business abroad.