Matt Reinhard* and John Davis discuss the acquittal of John O'Shea, a former general manager of ABB Inc., who was accused of violating the FCPA by bribing officials at Mexico's state-owned electric utility company and covering up the payments. Commenting on the case, Reinhard said, "This case is another example of how we're starting to see the government's theories in terms of the scope and extent of the law tested in front of a judiciary, and you're starting to see the government's practices examined. For a long time, the FCPA was what the Department of Justice said it was, however now there's at least some part of the judiciary that's looking critically at these cases."

However, Reinhard explained that the O'Shea case was more about a "deficit of proof" and illustrates the challenges the government faces in FCPA case, including witnesses and evidence outside of the United States. Davis noted that in FCPA cases, one of the "biggest hurdles prosecutors face is to prove knowledge and intent." According to Reinhard, the O'Shea case was also notable because it appeared to be an ideal situation for the government. Prosecutors had an individual who had flipped and agreed testify against O'Shea, plus ABB had agreed to cooperate, he noted. "They seemed to have all of the pieces on the chess board but they just couldn't seem to get them to move properly," Reinhard said.

Reinhard indicated that even with the recent government setbacks, the "conscious disregard" prong of the FCPA remains a ‘‘potentially terrifying tool'' in individual prosecutions. However, the outcome in the O'Shea case is quite different from that in the FCPA case involving Frederick Bourke Jr., who unsuccessfully appealed to the U.S. Court of Appeals for the Second Circuit, he said. According to Reinhard, "four bads" played a role in Bourke's loss on appeal: bad place, bad person, bad actions, and bad thoughts.

*Former Miller & Chevalier attorney