Writing the Facilitating Payments Exception Out of the FCPA

Last summer, a lawsuit brought by the Securities and Exchange Commission (SEC) alleging Foreign Corrupt Practices Act (FCPA) violations against two individuals related to Noble Corporation, a global oil and gas drilling services company, nearly went to trial in federal court in Texas. SEC v. Jackson and Ruehlen, No. 12-cv-563 (S.D. Tex.). (Note: The authors represented Mr. Jackson in this case. The views expressed herein are theirs alone.) As one of the only civil FCPA cases to proceed to that stage of litigation, the case provided unique insights into the SEC's interpretation of key provisions of the FCPA. The case ultimately settled on very favorable terms for the individuals, but the SEC's position on the facilitating payments exception to the FCPA was a notable departure from its own stated guidance and may herald a renewed attempt by the SEC to further narrow the exception to the point of irrelevance.

Originally published in Business Crimes Bulletin; reprinted with permission.