The fallout from the Panama Papers case continues and it has taken a new direction, which might prove to be an interesting front for other areas, such as enforcement of the FCPA. The Wall Street Journal reported that the “NML Capital Ltd., [NML] a unit of hedge-fund giant Elliott Management Corp. … is suing the Panamanian law firm Mossack Fonseca for obstruction of justice.” This claim of obstruction of justice relates to litigation that Elliott Management Corp. and others engaged in with the country of Argentina over default on its bond payments.
That underlying claim with Argentina has been resolved, but NML is now pursuing a claim directly against the law firm Mossack Fonseca, alleging “the law firm set up shell companies in Nevada that were used to siphon stolen money from Argentina and then obstructed its efforts to uncover those links.” Mossack Fonseca had a Nevada office up until last month and the U.S. Magistrate overseeing this case had previously determined that the Nevada law firm was the “alter ego or instrument for” the home office in Panama.
While these claims do not have any (apparent) connection with the FCPA; the article did give The Man From FCPA pause to consider what the responsibility might be for Mossack Fonseca or any other law firm which facilitated or in any other way helped create shell corporations which were a part of a bribery and corruption scheme. This would obviously have interest for U.S. government enforcement officials in both the Justice Department and Securities and Exchange Commission. And, given the scope of the law firm's activities, potential involvement in something that would fall under FCPA enforcement does not seem impossible.
However might also be of interest to persons or countries damaged by corruption in contracts with foreign government officials or employees of state owned enterprises. Such a claim might also be of interest to competitors of entities, which engaged in bribery and corruption to illegally win business opportunities. Such a claim might also be of interest to the plaintiff’s bar, who bring shareholder lawsuits when FCPA allegations are made or when a company discloses in corporate filings it is under going a FCPA investigation.