Overshadowed by FCPA guidance waiting and now the guidance, the foreign official challenge in the 11th Circuit, and the DOJ’s “Kool-Aid” stand in the Morgan Stanley so-called declination (see here for the prior post), one of the most significant FCPA stories of 2012 is that the SEC is being put to its burden of proof in an FCPA enforcement action.  Not once, not twice, but three times. (See this prior post for discussion of the three cases and links to previous posts).

As noted in the previous post, two of the challenges focus on the SEC’s alleged jurisdiction over foreign nationals.  With both the DOJ and SEC bringing more FCPA enforcement actions against foreign actors – for instance in 2011 90% of DOJ individual prosecutions were against foreign nationals and 100% of SEC individual prosecutions were against foreign nationals – the challenges are noteworthy.  Particularly so because Judge Leon, in the Africa Sting case, rejected the DOJ’s jurisdictional theory against U.K. national Pankesh Patel (see here for the prior post) in what was believed to be the first instance of judicial scrutiny concerning FCPA jurisdiction against foreign nationals.

Recently the SEC filed its opposition brief (here) to Herbert Steffen’s motion to dismiss.  Steffen is a former Siemens executives who was charged in December 2011 (see here for the prior post).

In summary, the SEC states as follows.

“Steffen’s motion contends (1) that the Court lacks personal jurisdiction over him and (2) that the SEC’s claims are time-barred under the five-year statute of limitations set forth in 28 U.S.C. § 2462. The Court should deny the motion on both grounds.

Steffen is subject to personal jurisdiction in this Court because his conduct caused foreseeable consequences in the United States. The complaint alleges that Steffen played a central role in a long-running bribery scheme at Siemens Aktiengesellschaft (“Siemens”); that he coerced a reluctant lower-ranking official to authorize and cover up bribe payments; and that his actions caused Siemens to file annual and quarterly reports with the SEC in the United States that misrepresented the company’s financial statements and that included false Sarbanes-Oxley certifications. The exercise of personal jurisdiction over Steffen on these facts is consistent with a long line of Second Circuit case law and entirely reasonable. Because Section 27 of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. § 78aa, provides for nationwide service of process, the Court need not look to New York’s long-arm statute, the N.Y. C.P.L.R., as a basis for jurisdiction.

Nor are the SEC’s claims time-barred. The plain language of 28 U.S.C. § 2462 provides that the five-year limitations period runs only “if, within the same period, the offender . . . is found within the United States in order that proper service may be made thereon.” 28 U.S.C. § 2462. Steffen is a German national who, by his own admission, has lived outside the United States during the entire relevant period. And even if he had spent the last five years in this country, the bribery scheme Steffen was a part of did not conclude until February 6, 2007, when Siemens realized the scheme’s objective, a $217 million arbitration award against the Argentine government. The SEC filed its complaint less than five years later, on December 13, 2011. Finally, as a long line of decisions in the Southern District of New York have recognized, the SEC’s claims for equitable relief — in this case, an injunction and disgorgement — are not subject to Section 2462 at all.”

In addition to its “foreseeable consequences” assertion, the SEC brief also contains the following sentence as to its alleged jurisdiction.

“Steffen also discussed the bribery scheme over the telephone with defendant Sharef while Sharef was in the United States, and a portion of the payments that Steffen pressured Regendantz to make were deposited in a New York bank.”  [As noted in this previous post, Sharef has agreed in principle to a settlement with the SEC and Regendantz previously settled with the SEC].

In its brief, the SEC acknowledges that there is no case law interpreting its Section 2462 tolling position.