As an active year in FCPA enforcement comes to a close and Anne Richardson of TRACE prepares to head to her hometown in Hawaii for the holidays, she thought it would be worthwhile to present a sampling– a pūpū platter, if you will – of interesting and peculiar cases in the evolution of the FCPA. More information on these and other international anti-bribery enforcement actions can be found on the TRACE Compendium.

As a related matter, please note that we have “counted” (and will regularly update on the Compendium) the number of FCPA enforcement actions brought by the DOJ and SEC since 1977. As of today, the DOJ has brought 71 enforcement actions against corporate entities and 104 actions against individuals. The SEC has brought 57 enforcement actions against corporate entities and 46 actions against individuals. Calculating the number of FCPA actions is not exactly straightforward and requires a defined methodology – we explain ours on the Compendium FAQs page.

Now, for the pūpū platter:

• In the “Page Airways” case from the late 1970s, the SEC filed a civil injunctive action against Page Airways, Inc. – Grumman Corporation’s worldwide sales distributor for twin-jet Gulfstream II corporate aircraft – and six officers and directors for violating the antifraud, proxy and FCPA recordkeeping provisions in connection with over $2.5 million in alleged bribes paid to foreign officials in a variety of countries, including $200,000 to the late President of Gabon, Albert Bongo. In the end, the SEC succeeded on the reporting (Section 13(a)) and proxy (Section 14(a)) charges. Interestingly, the SEC News Digest announcing the settlement stated: “In reaching this settlement, the Commission and Page considered concerns raised by another agency of the United States Government regarding matters of national interest.” To our knowledge, this is the only FCPA enforcement action where it was publicly disclosed that “matters of national interest” (national security or foreign policy, perhaps) were a predominant factor.

• In the “Crawford Enterprises” case from the early 1980s, which concerned an extensive bribery scheme involving multiple corporate entities, individuals and officials at Mexico’s state-owned oil company, Petroleos Mexicanos, two individuals successfully based their defenses on the now-deceased “Eckhardt Amendment.” The Eckhardt Amendment, which was removed from the FCPA in 1988, had provided that an employee could not be convicted of a criminal FCPA offense unless the employer had also been convicted of a substantive FCPA provision. The removal of this amendment opened the door to prosecuting individual employees separately from, or in lieu of, a corporate criminal prosecution.

• In the “Eagle Bus Manufacturing” case from the late 1980s, the DOJ charged a Greyhound subsidiary and several individuals with conspiracy to violate the FCPA in connection with a kickback scheme involving the president and vice president of a bus company owned by the Saskatchewan provincial government in Canada. The two Canadian officials at the Saskatchewan bus company were initially indicted for conspiracy to violate the FCPA. The officials challenged the indictment, arguing that foreign official recipients of bribe payments cannot be charged with conspiracy to violate the FCPA. The court agreed, finding that foreign official bribe-takers cannot be charged under the general conspiracy statute (18 U.S.C. 371) as their conduct was not substantively criminalized in the FCPA statute itself. To find otherwise, the court said, would be inconsistent with Congress’s intent not to punish foreign officials for their participation in the prohibited bribery schemes.

• In the “Tannenbaum” case in the late 1990s, the president of a garbage incinerator company was charged with conspiring to violate the FCPA in connection with scheme to bribe a supposed Argentine official to secure sales of garbage incinerators to the Government of Argentina. Tannenbaum offered a bribe to an undercover FBI agent posing as an Argentine procurement officer. Tannenbaum’s subjective belief that the intended recipient of a bribe was a foreign official – even if the recipient was not, in fact, a foreign official – was sufficient for the conspiracy charge.

The year 2009 saw three well-publicized FCPA trials – Bourke, Green and Jefferson. As more FCPA actions to go trial, we hope to see a body of FCPA case law develop. That’s good news for companies and individuals craving more guidance and clarification in the interpretation of the FCPA.