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Abstract: 

Although government enforcement agencies have for a long time targeted the financial services industry, until recentlythis scrutiny generally has not included enforcement of the Foreign Corrupt Practices Act (FCPA). The last few years have seen a marked increase in FCPA enforcement actions against the financial services industry, however, relying on new, aggressive, and largely untested theories of liability stretching the scope of the FCPA, including: (1) the definition of a “foreign official”; (2) how broadly to define a bribe; and (3) the scope of indirect liability for FCPA violations. As FCPA cases are largely resolved out of court, many of the government’s theories have not yet been subject to court challenges. The author addresses this gap, illustrating the recent rise of FCPA enforcement against financial institutions and offering a critical legal analysis of the new enforcement theories that have accompanied these developments.

Keywords: Foreign Corrupt Practices Act, regulatory and criminal enforcement, anti-bribery, theories of liability, indirect liability, individual liability, penalties, sovereign wealth funds, “princeling” investigations, Bank Secrecy Act

Affiliations:  1: Tesoro Corporation.