The recent successful prosecution of "Roger" Ng Chong Hwa (Ng) by the U.S. Attorney's Office for the Eastern District of New York (EDNY) sets the stage for the Department of Justice (DOJ) to more aggressively pursue violations of the Foreign Corrupt Practices Act (FCPA). Ng, a Malaysian citizen and a former Goldman Sachs managing director, had never set foot in the EDNY. But this past spring, Ng was convicted after a jury trial for paying bribes to foreign government officials, among other crimes, in violation of the FCPA. Ng's conviction not only reaffirms the broad scope of the DOJ's power under the FCPA but may embolden the DOJ in its quest to hold foreign national executives accountable, amid the U.S. government's ongoing fight against global corruption.

Jurisdiction and Venue Under the FCPA

The FCPA, which prohibits corrupt payments to foreign government officials for the purpose of obtaining or retaining business, has been the primary tool of the United States to combat foreign bribery since the Watergate scandal, when it was discovered that several U.S. companies and executives used overseas slush funds for corrupt foreign payments.

The FCPA's anti-bribery provisions specifically set forth categories of persons over whom the United States can assert jurisdiction for violations of the FCPA. 15 U.S.C. §78dd-1-dd-3. Specifically, the FCPA prohibits (1) "issuers" of U.S.-regulated securities, and their officers, directors, employees, agents, or stockholders acting on their behalf, from using means of interstate commerce or taking any act outside the United States in order to bribe foreign officials; (2) "domestic concerns," meaning U.S. persons and U.S. companies, and their officers, directors, employees, agents, or stockholders acting on their behalf, from using means of interstate commerce or taking any act outside the United States in order to bribe foreign officials; and (3) foreign persons or companies from taking acts in furtherance of a corrupt scheme, such as paying bribes, while in the United States. Id. In recent years, the Second Circuit has reviewed a handful of cases that tested the FCPA's jurisdictional reach. Notably, in United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018), the Second Circuit rejected the DOJ's attempt to use co-conspirator liability to expand the FCPA beyond the statute's delineated categories of jurisdiction.