May 2012: White Collar Litigation Update: Going to Trial on FCPA Charges—The Percentage Play

by Quinn Emanuel Urquhart & Sullivan, LLP

The DOJ’s Foreign Corrupt Practices Act (“FCPA”) trial woes continue. On February 21, a federal judge in Washington, D.C. dismissed the remaining sixteen defendants in a high-profile FCPA prosecution, criticizing the case as a “long and sad chapter in the annals of white collar criminal enforcement.” An FBI sting operation had led to charges being filed against twenty-two defendants alleging that they all participated in a scheme to bribe the defense minister of the small African nation of Gabon with $1.5 million to win a lucrative $12 million defense contract. Such bribes to foreign officials to obtain or retain business are prohibited by the FCPA. The dismissals in the Washington case came after a pair of trials in which three codefendants were acquitted while the jury could not reach unanimous verdicts against seven others. Three defendants had earlier pled guilty, although their guilty pleas may now be in jeopardy in light of the court’s dismissal of charges against the last sixteen defendants in the case.

The United States Department of Justice treats prosecutions of individuals in FCPA cases as a “cornerstone” of its FCPA enforcement strategy according to remarks made by Lanny Breuer, Assistant Attorney General for the Criminal Division, at a national FCPA forum in November 2009. While most recent FCPA cases against companies have been resolved short of trial, through non-prosecution or deferred prosecution agreements, where the company accepts responsibility and agrees to institute additional compliance measures, many cases against individuals are resolved through plea agreements in which the individuals are required to plead guilty to one or more criminal charges.

Only two companies appear to have ever put the government to its proof at trial on FCPA charges, and neither case ended with glory for the government. The first company, Harris Corporation, a defense contractor accused of paying bribes earmarked for Colombian officials to obtain government business, was acquitted in 1991 by the San Francisco federal judge hearing the case without the case even being submitted to the jury. Then, just last year, Lindsey Corporation, accused of paying bribes intended to win contracts from Mexican officials, was first convicted at trial in Los Angeles federal court, only to have the convictions thrown out by the presiding judge due to apparent misconduct by agents and prosecutors in the investigation and prosecution of the case.

In light of The DOJ’s usual unwillingness to resolve FCPA cases against individuals on the same favorable terms usually extended to their corporate employers, it is unsurprising that individuals have proceeded to trial considerably more frequently than corporations have. At least recently, that has been a very wise strategy. Aside from the acquittals and mistrials in the African sting operation cases in Washington, another individual, John O’Shea, never even saw his FCPA charges submitted to the jury in Houston in January; instead, the district judge granted his motion for judgment of acquittal during trial, finding that the government’s chief witness had provided “abstract and vague” answers and the government had failed to meet its burden of proof. Before those inauspicious results, the government had seen its convictions against the individual defendants in the Lindsey case in Los Angeles thrown out along with the convictions of the corporation in a case that the judge described as having “gone badly awry.”

While a spokesperson for the Department of Justice recently defended its FCPA prosecutions of both individuals and companies since enforcement was stepped up beginning in 2009, and over the last five to ten years, individual defendants in FCPA cases have not fared very well at trial, the last three months have revealed that the government’s FCPA cases against individuals are anything but airtight. For the individual defendant facing FCPA charges, pleading guilty is by no means a foregone conclusion. Between scrutinizing the government’s investigative and prosecutorial conduct and attacking the government’s proof of actual knowledge and intent to bribe or cause to be bribed an actual foreign government official, real opportunities may exist to put the government to its proof at a trial.

Written by:

Quinn Emanuel Urquhart & Sullivan, LLP

Quinn Emanuel Urquhart & Sullivan, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.