Recent Decision Provides Helpful Guidance on FCPA's "Wide Net"

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District Court Determines that the SEC Bears the Burden of Negating the 'Facilitating' Payments Exception -

On December 11, 2012, in a rare opinion interpreting the U.S. Foreign Corrupt Practices Act ("FCPA"), U.S. District Judge Keith Ellison granted, in part, two Noble Corporation executives' motions to dismiss claims by the Securities and Exchange Commission ("SEC") involving alleged bribes paid to Nigerian government officials in exchange for Temporary Import Permits ("TIPs") to operate oil rigs in Nigerian waters. Throughout his 61-page decision, Judge Ellison addressed several points of contention regarding the FCPA while reaffirming that the statute "cast[s] an otherwise wide net over foreign bribery." The decision offers helpful guidance to FCPA practitioners and companies with business operations abroad.

In SEC v. Jackson, the defendants contended that the FCPA requires a plaintiff to allege "by name, or at minimum by role and job responsibility, the foreign official who was sought to be influenced." After a detailed discussion of the FCPA's legislative history and precedent, Judge Ellison disagreed and determined that the SEC's allegations of payments to unspecified Nigerian government officials were sufficient...

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