These Days Everybody Has Long Arms: Global Jurisdiction for
Criminal Offenses and International Double Jeopardy
ABA Annual Meeting: Friday, August 9, 2013 (San Francisco, CA)
The opinions expressed in this presentation are those of the panelist and do not reflect the opinions, practices nor policies of the Panelists' respective employers, nor do they constitute legal advice.
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Tyler Hodgson, Partner, Borden Ladner Gervais (moderator)
Andrew S. Boutros, Assistant US Attorney, USAO – NDIL (panelist – in
his personal capacity)
T. Markus Funk, Partner, Perkins Coie (panelist)
El Cid Butuyan, The World Bank (panelist)
Note: The opinions expressed in this presentation are those of the presenters and do not reflect
the opinions, practices nor policies of the presenters' respective employers, nor do they
constitute legal advice.
FCPA Enforcement Overview and Trends
Andrew S. Boutros, AUSA, USAO – NDIL (Chicago)
T. Markus Funk, Partner, Perkins Coie
FCPA Primer
Anti-bribery Provisions: The FCPA prohibits:
1. Giving or offering;
2. Anything of value;
3. To a foreign government official, political party, or party
official;
4. With the corrupt intent to influence that official in his or
her official capacity; and
5. To secure an improper advantage in order to obtain or
retain business.
Accounting Provisions: “Issuers” must maintain accurate books
and records and reasonably effective internal controls
Top Rankings – Big Numbers
Company
2008 - 2012
Country
DOJ & SEC
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Siemens
Germany
$800 mm
1
2008
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KBR/Halliburton
*USA*
$579 mm
2
2009
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BAE Systems
UK
$400 mm
3
2010
•
Total S.A.
France
$398.2 mm
4
2013
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Snamprogetti/ENI
Holland/Italy
$365 mm
5
2010
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Technip SA
France
$338 mm
6
2010
•
JGC Construction
*USA*
$218.8 mm
7
2011
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Daimler
Germany
$185 mm
8
2010
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Alcatel-Lucent
France
$137.4 mm
9
2010
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Magyar Telekom/
Deutsche Telekom
Hungary/
Germany
$95 mm
10
2011
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Panalpina
Switzerland
$81.9 mm
11
2010
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Johnson & Johnson
*USA*
$70.1 mm
12
2011
Rank
Year
Dodd-Frank Whistleblower Reward Provisions
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Rewards individuals who provide tips to the SEC leading to
enforcement actions that exceed $1 million in sanctions
Whistleblowers can earn a payout of 10% to 30% of any monetary
sanctions collected
Tipster must voluntarily provide “original information” about a
possible federal securities law violation that has occurred, is
ongoing, or is about to occur
120-day rule
Anti-retaliation protections for employee-whistleblowers, including
a cause of action in federal court; reinstatement; double back pay
with interest; and litigation reimbursement
Putting Global Bribery (and Enforcement) Into Perspective
Transparency International
Corruption Perceptions Index
Scale of 1 (poor reputation) to 10 (good reputation)
Coming to Grips with the New Enforcement
Reality: “Carbon Copy” Prosecutions
Andrew S. Boutros, AUSA, USAO – NDIL (Chicago)
T. Markus Funk, Partner, Perkins Coie
So what is a “Carbon Copy” Prosecution?
“Consecutive prosecutions/investigations by
multiple jurisdictions for same conduct”
Four Elements:
1. Jurisdiction A
2. Files an enforcement action
3. Based on charging document/guilty plea/admissions
4. From Jurisdiction B
The Halliburton Case Study
• 2009
 Oilfield giant Halliburton settles with US authorities
($579 million) Bonny Island bribe matter involving
former subsidiary KBR
• December 7, 2010
 Nigerian anticorruption authorities file 16-count
criminal complaint against Halliburton, related
companies, and executives (including former V.P. and
Halliburton CEO Cheney
 Seek extradition of individual defendants
 Two weeks later – Halliburton settles case
Total, S.A. Charged in US and France
• May 29, 2013
– USA: French oil and gas Company, Total, S.A., pays
combined $398.2 million to US authorities to
resolve FCPA, B&R, and internal control charges
 DOJ: $245.2 mm criminal penalty; criminal information; 3-year
DPA; 3-year independent corporate compliance monitor; and
agreement to cooperate with DOJ and foreign law enforcement
 SEC: $153 mm in disgorgement and prejudgment interest; and
cease-and-desist order
– France: Announced it requested Total, Total’s
Chairman, and two others be referred to French
Criminal Court for prosecution, including for
France’s foreign bribery law
DOJ Press Release – Total’s Prosecution
– “Today we announce the first coordinated action by
French and U.S. law enforcement in a major foreign
bribery case,” said Acting Assistant Attorney General
Raman. “Our two countries are working more closely
today than ever before to combat corporate corruption,
and Total, which bought business through bribes, now
faces the criminal consequences across two continents.”
– “The department also acknowledges and expresses its
deep appreciation for the cooperation and partnership of
French law enforcement authorities.”
But, French Criminal Court Acquits
• July 9, 2013
– French Criminal Court acquits Total and 18 individuals, including Total
CEO
• Total faced a fine of up to 1.88 million euros ($2.4 million)
• Total’s CEO was charged with complicity in misusing company assets and
faced five years of prison and a fine of 375,000 euros
– Total argued that OFFP was run by middlemen, that system was
complex and opaque, and company lacked knowledge
– Reuters reported that “prosecutors struggled to identify which Total
executives might have been aware of how the U.N. program was being
illegally manipulated and whether they had given orders to participate
regardless”
Other Examples
Consecutive prosecutions/investigations by multiple jurisdictions for same conduct
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Shell
• $48.1 million to DOJ and SEC
• $10 million to Nigerian government
Snamprogetti/ENI
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$365 million to DOJ and SEC
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$32.5 million to Nigerian government
BAE Systems
• $400 million to DOJ
• £30 million (~$46.5 million) to UK’s SFO (simultaneously)
Innospec
• $27.5 million to DOJ, SEC, OFAC
• £8.5 million (~$12.7 million) to UK’s SFO (simultaneously)
Other Examples (cont.)
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Alcatel-Lucent
• $137.4 million to DOJ and SEC
• $10 million to Costa Rican government
JGC Corporation
• $218.8 million to DOJ million to DOJ
• $28.5 million to Nigerian government
Siemens
• $800 million to DOJ and SEC
• $569 million to Munich Prosecutor (simultaneously)
• $46.5 million to Nigerian government
• $336 million to Greek government
• $100 million to World Bank Group
Hard to Later “Change Tune”
 DOJ and (now) SEC require admission, acceptance, or
acknowledgement of corrupt conduct in NPAs, DPAs,
plea agreements, and settlements
 Note: SEC requires this only in parallel DOJ resolutions
 Standard plea/NPA/DPA language strictly bars
company from later taking public position
contradicting factual basis (DOJ decides)
Consider also . . . Mandated Cooperation with US
and Foreign Authorities
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Data Systems & Solutions (ED Va 2012)
• “[S]hall also cooperate fully with other domestic or foreign law
enforcement authorities and agencies”
Alcatel-Lucent (SD Fla 2010)
• “[Must c]ooperate fully with such other domestic or foreign law
enforcement authorities and agencies, as well as Multilateral
Development Banks, in any investigation of Alcatel-Lucent”
Shell (SD Tex 2010)
• “[Shall c]ooperate fully with other domestic or foreign law
enforcement authorities and agencies…in any investigation of
[Shell]”
Key Strategic Implications
1. Simultaneous multi-district disclosure?
Must gauge likely reaction of U.S./foreign authorities
Global settlement or multi-front war?
Dissuade US or foreign authority from prosecuting?
2.Double Jeopardy Implications?
US doesn’t recognize international double jeopardy (but
others do – see UK and BAE case)
3.Collateral Estoppel (“issue preclusion”) impact?
Foreign proceedings fair, impartial, compatible with US
conceptions of justice? (Civil and criminal cases)
No final acquittal/conviction required
The World Bank and Cross-Debarments
El Cid Butuyan, Senior Litigation Specialist, World Bank
International Double Jeopardy
Tyler Hodgson, Partner, Borden Ladner Gervais LLP
Different theories of criminal jurisdiction
1.
2.
3.
4.
5.
Territorial
Universal
National
Passive Personality
Protective
US v. Clark, 435 F. 3d 1100 (9th Cir. 2006)
Presumption Against Extraterritoriality
1. Presumption against extraterritoriality: “The legal
presumption that Congress ordinarily intends federal
statutes to have only domestic application” (US v. Clark)
Can be overcome by evidence that
Congress intended law to apply
extraterritorially.
2. If overcome, extraterritorial application must not offend any
principle of international law
US v. Neil, 312 F. 3d 419 (9th Cir. 2002)
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Grenadian defendant employed on Carnival cruise ship
with Panamanian registration.
Sexually assaults 12 year old American citizen in Mexican
territorial waters
Cruise departed and returned from port in California
Defendant argued that US did not have extraterritorial
jurisdiction over the crime
Principles of international law relied upon by Court in
Neil
1.
Passive Personality Principle
Crimes committed against a country’s nationals
2.
Territorial principle
“ Under the territorial principle, the United States may assert
jurisdiction when acts performed outside of its borders have
detrimental effects within the United States.”
Traditional application of territoriality principle
“All crime is local. The jurisdiction over the
crime belongs exclusively to the country where
the crime is committed”
-Lord Chancellor Halsbury, Makin v. AG for New South Wales (1891)
Evolution of territoriality principle
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Terminatory theory or “last acts” doctrine
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Comity theory of jurisdiction (UK)
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Real and substantial connection (Canada)
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Effects doctrine (UK)
Exclusive v. Concurrent Jurisdiction
What happens if more than one country seeks to punish the
same conduct?
- Legislative Summary, Corruption of
Foreign Public Officials Act (Canada)
Exclusive vs. Concurrent Jurisdiction
Person previously tried outside Canada
5 (4) If a person is alleged to have committed an act or
omission that is deemed to have been committed in
Canada under subsection (1) and they have been tried and
dealt with outside Canada for an offence in respect of the
act or omission so that, if they had been tried and dealt with
in Canada, they would be able to plead autrefois acquit,
autrefois convict or pardon, they are deemed to have been
so tried and dealt with in Canada.
Corruption of Foreign Public Officials Act
Different approaches to double jeopardy: the United
Kingdom
“[A] final determination in a Court having competent jurisdiction
is conclusive in all Courts of competent jurisdiction. Therefore if
A, having killed a person in Spain, were there prosecuted, tried
and acquitted, and afterwards were indicted here, at Common
Law, he might plead the acquittal in Spain as a bar”
- Captain Roche’s Case (1775)
“The common law doctrine of autrefois convict or autrefois
acquit…has always applied whether the previous conviction or
acquittal based on the same facts was by an English court or a
foreign court.”
- Lord Diplock, Treacy v. DPP, [1971] 1 All ER
Successive prosecutions for same conduct: the
American approach
The dual sovereignty doctrine
United States v. Richardson, 580 F. 2d 946 (9th Cir. 1978)
Health v. Alabama, 474 U.S. 82 (1985)
United States v. Rezaq, 134 F. 3d 1211 (1998)
Carbon copy prosecutions
Global prosecutions, global resolutions
 American vs. British approach to double jeopardy
 Simultaneous engagement of different national authorities:
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R. v. Griffiths Energy, [2013] A.J. No. 412 (QB)
SEC v. Stanko J. Grmovsek; OSC v. Grmovsek
Questions?