As individual jail terms and corporate fines continue to increase, many companies and executives outside the United States are left wondering: How are US laws able to reach so far outside US borders? The United States has some fundamental legal principles that can allow its enforcement authorities to apply its laws well beyond US borders. White & Case’s White Collar team explains.
In recent years, the press has been full of reports of non-US companies being investigated and, at times, prosecuted by enforcement authorities in the United States for a host of alleged violations of US law. Individuals, too, have been charged, extradited and gone to jail in the United States, all without ever setting foot in the United States during the alleged misconduct. US enforcement authorities are aggressively interpreting and applying US criminal laws to companies and individuals outside the United States, including for conduct with little apparent nexus with the United States. Exposure to potential violations of US law can arise from a number of circumstances, and it is more critical than ever to identify and mitigate those risks. For example, US regulatory and enforcement officials often take the position that the mere transit of emails through the United States - sent from one person outside the United States to another outside the United States - is enough to reach the conduct required under US criminal law. Similarly, US authorities may assert that transit of money through the United States on its way from one non-US location to another non-US location is enough to create US criminal jurisdiction. This application of US criminal law can result in significant fines and penalties, including imprisonment.
Given the potentially long reach of US law, non-US companies and individuals should manage their legal risk in advance of any potential issues. One of the best ways to address these risks is regularly undertaking risk assessments to determine where there may be exposure to US laws. Another is to create and implement appropriate compliance policies and procedures to conduct transactions in accordance with all applicable laws. Once appropriate policies and procedures are in place, relevant personnel should be trained on a regular basis, including on changes in the law and emerging risk areas.
Reading the signals
The reach of US law
- Any communication or movement of funds in the US may be sufficient to create US jurisdiction
- Money transiting through the US may be sufficient to create jurisdiction
- US law may apply to the conduct of US citizens outside of the US. See also “US sanctions programs” on page 16 for further definition of a “US person”
- A parent company can potentially be liable for the acts of its subsidiary if the latter acted on its behalf
- US law may apply to acts outside the US of a non-US agent of a company or individual subject to US jurisdiction
- A coconspirator may be liable for the acts of its conspirator
How US laws can apply
MEANS OR INSTRUMENTALITY OF INTERSTATE COMMERCE
Many US laws—including the Foreign Corrupt Practices Act (FCPA) in certain circumstances and various antifraud statutes—may establish jurisdiction over a crime whenever it involves the use of any “means or instrumentality of interstate or foreign commerce.” The term is broadly defined by US authorities and may cover any communication or movement that crosses state or international borders, including wire transfers, emails, phone calls, mail and travel. Given the reach of UScommerce, from free email servers to correspondent banks that clear US dollars for non-US based banks, such a broad definition can significantly increase the reach of US law. Furthermore, according to US authorities, a defendant company or individual need not use the means or instrumentality of interstate commerce themselves— it may be enough for them to have “caused” the use, such as an instruction being sent to one person, who then forwards it to another, through email servers in the United States.
Conspiracy law may subject non- US companies or individuals who have not committed an act within the United States to US criminal jurisdiction. Under long established principles of criminal liability, a conspirator may be liable for a coconspirator’s acts, as well as for any “reasonably foreseeable” offenses committed by a coconspirator. If the United States can establish jurisdiction over a single conspirator, it may have jurisdiction over all conspirators, whether companies or individuals, wherever they may be found. In certain circumstances, a conspirator need not have participated in or even known about the underlying criminal offense committed by a coconspirator to be liable. Moreover, unlike conspiracy law in some other countries, under US criminal law, a company can “conspire” with its employees, so corporate crime in the United States may result in a prosecutable conspiracy.
A company or an individual also may be prosecuted under some US laws, if the company or individual is found to have acted as the “agent” of a company or individual that falls under US jurisdiction. For example, a Japanese trading company was recently prosecuted for violating the FCPA’s anti-bribery provisions as the “agent” of a US company, even though the trading company did not act within the United States. A company potentially also may be liable for third parties’ actions if those third parties acted on the company’s behalf and for the company’s benefit. Similarly, under the principle of respondeat superior, a company employee who is acting within the scope of his or her employment, and for the benefit of the company, is considered an agent of the company. If they commit a crime connected to their employment, the company may be criminally liable as well.
“PIERCING THE VEIL”
A company may be liable for another’s conduct under the corporate liability principles of “alter ego” or “piercing the veil.” For example, a parent company may be liable for its subsidiary’s acts if it can be shown that the subsidiary was acting as the “alter ego”—or under the control of—the parent. If a subsidiary outside the United States is determined to be an “alter ego” of the parent, US authorities may be able to “pierce the veil” of legal separation between the companies, and, if so, the foreign company’s actions can be treated as if they were committed by the US company. Once an alter ego relationship is shown to exist, either in general or in a specific instance, the subsidiary’s conduct and knowledge may be attributed to the parent.
FOLLOWINGTHE MONEY: MONEY LAUNDERING AND SANCTIONS
US law makes it a criminal offense to engage in or attempt to engage in a financial transaction involving funds that are known to be the proceeds of certain unlawful activities, or to engage in a financial transaction that provides funds for the commission of a crime (such as terrorist financing or sending a bribe payment).This offense is called “money laundering,” and non-US corporations and foreign nationals may be subject to prosecution under US federal anti- money laundering statutes if they are involved in the transfer or attempted transfer of illegally obtained funds or funds used to further criminal activity. Money laundering offenses can be as serious as the underlying offenses they promote. Each financial transaction can be considered a separate offense and is punishable by substantial fines and possible imprisonment. Additionally, funds and other property involved in money laundering may be frozen or seized by US enforcement authorities, or subject to forfeiture.
In prosecuting money laundering offenses, the US Department of Justice takes the position that jurisdiction exists over a financial transaction if the laundering is completed by a US citizen anywhere in the world, or by a foreign national or non-US corporation if the criminal conduct occurs in part in the United States—even if the foreign individual or company never themselves took an action in the United States, or intended for an act to occur there. This broad jurisdiction can greatly expand the reach of the US money laundering statutes. For example, US corporations and individuals potentially may be prosecuted for money laundering offenses involving financial transactions that occur wholly outside the United States. US courts have held that the financial transaction requirement is satisfied for a wholly foreign transaction if the defendant’s conduct “affected” foreign commerce with the US— such as in antitrust matters. Virtually every dollar denominated transaction potentially implicates US commerce with other nations. While there does need to be an actual US nexus for money laundering laws to apply—the dollars being cleared through a US correspondent bank, for example— and there are dollar-denominated transactions that have no such tie, US enforcement authorities increasingly operate on the assumption (unless convinced otherwise) that they have jurisdiction for such offenses whenever a suspect transaction is denominated in US dollars.
The jurisdiction potentially created by clearing US dollars through a US bank can also significantly extend the reach of US sanctions laws. Sanctions can prohibit or restrict doing business with countries (such as Cuba, Sudan, and Iran), individuals or companies referred to as “specially designated nationals” or “SDNs,” which are ‘blocked’ parties subject to a US asset freeze, and entities placed on the “Sectoral Sanctions Identifications List” (SSI List), as in the case of the Ukraine- related sectoral sanctions. Sanctions regimes typically cover all “US persons”, but what qualifies as a US person may change from one sanctions regime to the next, as each set of sanctions varies slightly. Generally, it includes any US citizen or permanent resident and any US company, wherever they are in the world, as well as any person physically in the United States. In addition, in certain instances US sanctions may reach non-US subsidiaries of US companies. This may mean that the clearing of dollars through a US bank may be enough to create US jurisdiction over subject transactions.
The location of funds outside the United States does not necessarily mean they are beyond the reach of US enforcement authorities. Under US law, the proceeds of criminal offenses—including some offenses that occur entirely overseas—may be subject to forfeiture and may be frozen and eventually seized by US authorities through forfeiture actions initiated in US courts. With a judgment of forfeiture issued by a US court in hand, US authorities may be able to freeze not only funds located in US bank accounts, but also funds deposited in foreign bank accounts in view of the increasing cooperation among and between enforcement authorities in different countries.