In the past decade, the Department of Justice has increased its focus on prosecuting white-collar crimes that are committed outside of the United States. Some observers have questioned the fairness of this emphasis on offshore targets, but DOJ has collected billions of dollars in financial penalties from international banks and corporations based on investigations relating to benchmark rates (LIBOR, foreign exchange), violations of the Foreign Corrupt Practices Act (FCPA), and money laundering. Jesse Eisinger, “France Sees Double Standard in U.S. Prosecution of BNP, but Justice is Weak,” New York Times (June 18, 2014). “Cases such as LIBOR, and the subsequent cases involving manipulation of the foreign exchange markets,” DOJ officials have explained, “reflect a natural continuation of the growing relationship between the Criminal Division and foreign law enforcement.” Department of Justice, Office of Public Affairs, “Principal Deputy Assistant Attorney General David Bitkower Delivers Remarks At American Bar Association Southeastern White Collar Crime Institute,” Sept. 8, 2016.

DOJ’s international focus has expanded at the same time as courts have shown increased skepticism about using our laws to punish conduct that only indirectly or tangentially impacts the United States. Courts seem increasingly willing to limit the extraterritorial application of U.S. law. Given that DOJ typically resolves its corporate investigations with settlement agreements, it may be left to counsel for individual defendants to advocate for expansion of this developing body of law.

The Presumption Against Extraterritoriality

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