The Foreign Corrupt Practices Act Jurisprudence of Shira Scheindlin
67 Pages Posted: 27 Nov 2019
Date Written: November 14, 2019
The Foreign Corrupt Practices Act (FCPA) is a top priority federal statute of significant importance to all businesses and individuals engaged in international commerce. Yet, despite its significance, few FCPA enforcement actions are subjected to judicial scrutiny and most federal court judges go their entire career without an FCPA case being placed on their docket. However, recently retired judge for the U.S. District Court for the Southern District of New York Shira Scheindlin is an exception and during her time on the bench she refereed more disputed FCPA issues than any other federal judge in FCPA history. Judge Scheindlin’s written FCPA decisions spanned both criminal and civil enforcement actions and touched upon topics ranging from prima facie FCPA elements, an FCPA affirmative defense, jurisdiction over foreign nationals, as well as related legal issues such as statute of limitations. Moreover, Judge Scheindlin interpreted the FCPA and related issues across the full spectrum of a contested proceeding from motions to dismiss, to motions in limine in advance of trial, to post-trial motions, and to sentencing a criminal defendant.
This Article analyzes the FCPA jurisprudence of Judge Scheindlin and provides rare insight — including through exclusive questioning of Judge Scheindlin — into the mind of the FCPA’s most prominent jurist. The Article proceeds in four parts: Part I provides context for Judge Scheindlin’s spot-on observation that there are “surprisingly few decisions throughout the country on the FCPA”; Part II briefly highlights Judge Scheindlin’s background and overall judicial career; Part III dissects Judge Scheindlin’s many FCPA decisions; and Part IV extracts common themes from Judge Scheindlin’s FCPA jurisprudence and concludes that Judge Scheindlin’s views on the FCPA — a statute she frequently found ambiguous — were undeniably nuanced. The jurisprudence of the FCPA’s most prominent jurist matters against the backdrop of some who insist that the FCPA is a clear statute and who view FCPA issues as black and white.
Keywords: Foreign Corrupt Practices Act, FCPA
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