Several court decisions in trials under the Foreign Corrupt Practices Act during the first quarter of 2013 have tested the enforcement positions of the U.S. Securities and Exchange Commission on some critical issues, including jurisdiction, the application of relevant statutes of limitations and the agency’s burden to plead specific elements of a violation. The results for the agency have been mixed, although the decisions produced only one case dismissal.
A pair of contrasting rulings from the Southern District of New York, both issued in February, involved the application of well-established law on personal jurisdiction under the due process clause of the U.S. Constitution to foreign defendants accused in civil cases of violating the FCPA while outside the United States. The courts reached different conclusions under the applicable facts, yet the two rulings provide important guidance about a not uncommon scenario.
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