The Foreign Corrupt Practices Act (FCPA) makes it a crime for “any officer, director, employee, or agent” of an issuer of U.S. securities “to make use of the mails or any means or instrumentality of interstate commerce” in furtherance of any corrupt offer, promise or payment to a foreign official. While much has been written about the FCPA’s various substantive violations, defenses and exceptions, very little has been written about the jurisdictional requirement of use of the “mails,” “means” or an “instrumentality” of interstate commerce. Until now.
Earlier this month in Securities and Exchange Commission (SEC) v. Straub, Judge Richard Sullivan of the Southern District of New York published the first decision on this important FCPA topic. For federal criminal practitioners, Straub’s broad interpretation of the jurisdictional language comes as little surprise. Use of mails or instrumentalities of interstate commerce is a jurisdictional hook for many federal criminal statutes, such as mail and wire fraud. However, the practical implications of the decision demonstrate just how far the FCPA reaches, and how easy it is to subject a wholly foreign transaction to the FCPA.
In yet a further expansion, Straub held that the “catch-all” statute of limitations that applies to the SEC’s civil FCPA enforcement (and many other types of enforcement) does not run against defendants who are not physically present in the U.S.
All of this has significant implications.