Coming to America: the extraterritorial reach of US judicial process

Abstract

Purpose

The purpose of this paper is to explore situations in which US Federal Courts may impose severe fines and sanctions to compel the disclosure of information maintained outside the territorial limits of the USA by enforcing either a grand jury subpoena or an Internal Revenue Service administrative summons.

Design/methodology/approach

The paper presents a memorandum of law summarizing and analyzing relevant US legal precedents, including In Re Grand Jury Proceedings (Bank of Nova Scotia), 740 F.2d 817 (11th Cir. 1984), a case that has come to be eponymous for any US judicial process calling for the production of foreign records: “Bank of Nova Scotia subpoenas.”

Findings

The paper finds that, in appropriate circumstances, US Federal Courts have been willing to impose coercive fines and sanctions on individuals or entities that have failed to produce records and other information that is outside the territorial jurisdiction of the USA.

Research limitations/implications

The analysis is focused on two US legal precedents that exemplify the factors considered by US Federal Courts in arriving at a decision. Many other cases are cited but not examined in depth.

Practical implications

The paper is of interest to anyone engaging in cross‐border activities with the USA, particularly multi‐national financial organizations.

Originality/value

The paper provides an insight into the US law enforcement tools that may be deployed against multi‐national organizations.

Citation

Cihlar, F.P. (2009), "Coming to America: the extraterritorial reach of US judicial process", Journal of Financial Crime, Vol. 16 No. 2, pp. 115-124. https://doi.org/10.1108/13590790910951795