Challenges to the DOJ's Jurisdiction Over Extraterritorial Conduct

Part One of a Two-Part Article

The United States is often criticized for trying to be the world’s policeman — for trying to prosecute wrongdoing all over the world, even when the connection to U.S. interests is, at best, tenuous. The Supreme Court has in recent years begun imposing limits on the application of federal laws to wide swaths of extraterritorial conduct, in Morrison v. National Australia Bank, 561 U.S. 247 (2010), and related cases. The Court limited the extraterritorial reach of the federal securities laws (Morrison); limited the extraterritorial reach of the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013)); and made it harder for U.S. courts to get personal jurisdiction over foreign defendants (Daimler AG v. Bauman, 134 S. Ct. 746 (2014). But to what extent does the Morrison line of cases help challenge the notion of the United States as the world’s policeman?

Our answer is, not much. The Supreme Court’s focus in recent years appears to be on limiting the ability of foreign civil plaintiffs to recover under U.S. law for wrongs committed abroad, leaving the DOJ’s ability to prosecute misconduct around the world relatively intact. The most recent case in the Morrison line — RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016) — was the first to address a criminal statute, and that case ended up barring civil plaintiffs from recovering under RICO for injuries that only took place abroad, while at the same time preserving the DOJ’s ability to pursue criminal RICO charges stemming from the same conduct.

The case led some commentators to conclude that the DOJ was getting everything it wanted — the ability to use RICO extraterritorially, while getting “pesky” civil plaintiffs out of the way of criminal enforcement actions. See, e.g., Amy Howe, Opinion Analysis: In the End, RJR Prevails in European Community’s RICO Lawsuit, SCOTUSblog, June 20, 2016; see also Peter J. Henning, RJR Nabisco Ruling Bolsters Justice Dept.’s Pursuit of FIFA, New York Times, June 27, 2016.

Coupled with the fact that the DOJ’s jurisdiction is rarely challenged in court because so many defendants choose to settle, the outlook may appear bleak for foreign criminal defendants challenging the DOJ’s seemingly expansive jurisdiction. But RJR Nabisco and other recent decisions of lower federal courts still provide hope for successful challenges to extraterritorial criminal jurisdiction in certain cases. This article examines a few of those options — specifically, the extent to which the presumption against extraterritoriality from the Morrison line of cases applies to criminal statutes; the fruitful challenges that remain apart from the presumption against extraterritoriality; and due process limits on the DOJ’s ability to prosecute extraterritorial conduct.

Editor’s Note: In next month’s issue, the authors discuss the presumption against extraterritoriality in criminal cases, as well as exceptions to this “rule” that some courts have been more than willing to embrace. Yet, despite the trend toward increased application of American federal laws to extraterritorial conduct, there has also been some judicial pushback against overreaching federal prosecutors. In this regard, the authors will look at defenses that have shown some success and could be used in future cases — as long as a defendant is willing to go through the litigation process rather than settling.

Reprinted with permission from the September 2016 edition of the Business Crimes Bulletin© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].