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The DOJ's 3 FCPA Strikes

The following commentary comes from an independent investor or market observer as part of TheStreet's guest contributor program, which is separate from the company's news coverage.

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NEW YORK ( TheStreet) -- After years of unprecedented success enforcing the U.S. Foreign Corrupt Practices Act -- the law that prohibits companies and individuals from offering or giving bribes to win or retain business abroad -- the Department of Justice has hit a series of major stumbling blocks that has commentators questioning the very future of FCPA enforcement.

In December, Judge Howard Matz of the U.S. District for the Central District of California dismissed with prejudice the FCPA case against Lindsay Manufacturing and two of its executives on grounds of prosecutorial misconduct. The ruling overturned a jury's guilty verdict against the company, its CEO and CFO. Lindsey was the first company ever convicted at trial of violating the FCPA. In a sharply worded ruling, Judge Matz stated that "charges were filed against [the defendants] as a result of a sloppy, incomplete and notably over-zealous investigation."

In late January, Judge Richard Leon of the U.S. District Court for the District of Columbia declared a mistrial of the remaining defendants in the FCPA prosecution that has come to be known as the "Africa Sting" trial. The jury could not agree to convict the defendants on the evidence presented at trial. Just a day before the judge's ruling, the jurors actually acquitted two other defendants of violating the FCPA, and the judge acquitted yet another in December -- even before the case went to the jury.

The first Africa Sting trial fared no better for the government, ending in a hung jury in July of 2011. This week, faced with the virtual collapse of its case, Justice Department officials indicated they may abandon the prosecution altogether rather than retry the defendants.

Just weeks earlier, Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas acquitted John O'Shea, a former manager of ABB Inc., a Texas-based subsidiary of Swiss engineering company ABB, of bribing Mexican government officials and then covering it up. In his ruling, Judge Hughes stated that the government's chief witness simply could not connect O'Shea to the alleged bribery scheme.

These recent setbacks have inspired commentators of diverse stripes to start reading the tea leaves for signs that government enthusiasm for FCPA prosecutions may wane in 2012. Should this series of losses be viewed simply as a matter of coincidence -- close cases that just happened to break the wrong way in the government's view -- or are they emblematic of an enforcement regime increasingly prone to arrogance and overreaching? Will they have a chilling effect on vigorous FCPA prosecution? Importantly, what effect will they have on corporate willingness to cooperate with enforcement officials to settle cases in the future?
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