If the Foreign Corrupt Practices Act is Peyton Manning, the Travel Act could turn out to be his little brother Eli.
Allow me to explain. As we all know, until the last several months, FCPA has been one of the Justice Department’s Hall of Fame success stories. Prosecutors have reaped billions in settlements with corporations accused of bribing foreign officials to obtain state-sponsored contracts. The list of FCPA defendants that signed plea deals — including Siemens and Halliburton — is long and sobering, which means the Justice Department met the dual goals of buffing up its prosecution record and satisfying the larger U.S. policy interest in deterring overseas corruption. But of late the department’s FCPA record has taken a hit (sort of like Peyton’s neck) with the dismissal of the Lindsey Manufacturing and Africa sting case.
Is this the moment for the Travel Act to catch up with its better-known brother, a la Eli Manning?
William Sullivan of Pillsbury Winthrop Shaw Pittman told me Monday that government prosecutors have shown a “renewed interest” in the Travel Act, a broad, catch-all law originally designed to combat racketeering. (In a terrific discussion of the Travel Act last month at Thomson Reuters News and Insight, Mike Emmick of Sheppard Mullin Richter & Hampton said the law “makes it a crime to engage in any interstate or foreign travel, or to use any mail or facility in foreign or interstate travel, with the intent to ‘carry on’ or ‘facilitate’ any ‘unlawful activity,’” including bribery.) As Sullivan explained in a new Pillsbury client alert, the Travel Act actually allows greater leeway than the FPCA, since it doesn’t target just bribes to foreign officials. Any bribe, or even attempted bribe, with a commercial purpose can trigger prosecution under the Travel Act, so long as the accused corporation is subject to an underlying state law prohibiting bribery for commercial purposes. (And as Sullivan notes, prosecutors can usually find some state law to fit their allegations.)
The Travel Act also permits the government to extend the statute of limitations through a hybrid federal conspiracy charge that claims the defendants intended to violate the FCPA and the Travel Act. “This makes it much easier for prosecutors to string together seemingly unlinked fact patterns, and also affords prosecutors additional advantages with respect to statutes of limitations, as the statute is tolled until the last act in furtherance of the conspiracy,” the Pillsbury client alert said.