The Gabon Mistrial: DOJ Prosecution of Individuals Puts Aggressive FCPA Theories Under Fire

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In a blow to the U.S. Department of Justice’s (DOJ’s) efforts to increase enforcement of the Foreign Corrupt Practices Act (FCPA) against individuals, Judge Richard J. Leon of the U.S. District Court for the District of Columbia declared a mistrial on July 7 in a case against four defendants charged in connection with an extensive undercover sting operation executed by the FBI. The trial was against four of 22 defendants charged with conspiring to pay bribes to the Defense Minister of Gabon in order to secure a $15 million equipment contract.

The mistrial has been largely attributed to weaknesses in the sting operation itself, including alleged outrageous behavior by the key informant and suggestions that the defendants were entrapped by government operatives who concealed the illegal nature of the transaction. The Gabon mistrial represents a setback in efforts by the DOJ to prosecute individuals for FCPA violations. However, its greater significance lies in highlighting that prosecutions of individuals will likely backfire on the DOJ’s enforcement efforts against companies and result in a narrowing of the DOJ’s jurisdiction to enforce the FCPA. For example, one of the DOJ’s aggressive jurisdictional theories under Section 78dd-3 failed last month when Judge Leon dismissed an FCPA count against defendant Pankesh Patel.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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