Pursuant to a deferred prosecution agreement (DPA) with the United States Department of Justice, German company Bilfinger SE will be paying $32 million to resolve admissions that it violated the Foreign Corrupt Practices Act (FCPA). Bilfinger is a German company that is not a U.S. issuer. It is not a U.S. domestic concern. Yet the U.S. prosecuted it nonetheless.
As part of the DPA, the U.S. filed a three-count Information against Bilfinger. The first count is a conspiracy to violate the FCPA and bases its jurisdiction on Bilfinger and its employees conspiring with Willbros companies and their employees. Given that Willbros had a company that was a U.S. issuer and a company that was a U.S. domestic concern, there is jurisdiction for this conspiracy count alleging an FCPA violation.
Counts 2 and 3, however, charged substantive violations of the FCPA based on allegations that Bilfinger violated 15 U.S.C. §§ 78dd-1 and 78dd-2, the two FCPA sections that apply to U.S. issuers and U.S. domestic concerns, respectively. Although the text of the Information does not use the term “aiding and abetting,” the Counts specifically charge violations of 18 U.S.C. § 2, which is the aiding and abetting statute. Therefore, these two substantive counts rest on Bilfinger aiding and abetting the violation of Willbros Group Inc. (a U.S. issuer) and Willbros International Inc. (a U.S. domestic concern).
In addition, under these sections of the FCPA, the U.S. had to allege the use of means and instrumentalities of interstate and international commerce. The two acts alleged were (1) a flight from Houston, Texas to Boston, Massachusetts to discuss promised bribe payments, and (2) a wire transfer from Houston to Frankfurt, Germany.
U.S. enforcers presaged this aggressive use of the FCPA to go after foreign companies in the FCPA Guidance they issued in the Fall of 2012. As we stated in our webinar discussing that Guidance (http://bryancavemedia.com/wp-content/uploads/2012/12/fcpa_new_guidance_webinar.pdf), the U.S. plans to enforce the FCPA against foreign companies, which otherwise would not be subject to FCPA jurisdiction, using conspiracy and aiding and abetting theories. Clearly, U.S. enforcers will not be deterred from finding some jurisdictional hook to go after foreign companies