Vote, motion for reconsideration, and for the reading stack. It’s all here in the Friday roundup.
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Motion for Reconsideration
Unhappy with U.S. District Court Judge Janet Bond Arterton’s (D. Conn.) recent interpretation in U.S. v. Hoskins (see here) of the FCPA that Congress actually enacted, the DOJ recently filed this motion for a reconsideration. The motion is based almost entirely on the DOJ’s views on the FCPA’s legislative history, demonstrating once again the importance of the FCPA’s legislative history (see here).
Speaking of the recent decision in U.S. v. Hoskins, this King & Spalding alert states:
“[T]he Government argued for an accomplice theory, consistent with the Resource Guide to the Foreign Corrupt Practices Act. That guidance, first released in 2012, posed just such a hypothetical scenario:
Moreover, even if [defendant] had never taken any actions in the territory of the United States, they can still be subject to jurisdiction under a traditional application of conspiracy law and may be subject to substantive FCPA charges under Pinkerton liability, namely, being liable for the reasonably foreseeable substantive FCPA crimes committed by a co-conspirator in furtherance of the conspiracy.
The District Court rejected that theory, based on the U.S. Supreme Court’s decision in Gebardi v. United States, which established that whenever Congress has intentionally excluded certain individuals from liability for a specific law, this congressional intent must not be circumvented by prosecuting such individuals based on accomplice liability.
While the District Court rejected accomplice liability as an additional basis for FCPA jurisdiction, it remains to be seen how other courts will address this question, and whether the DOJ and the SEC will revisit their guidance on the matter. Given the rarity of written judicial opinions interpreting the FCPA, this ruling is likely to have an outsized impact on future FCPA enforcement actions.”
For additional reading on how the FCPA Guidance is an advocacy piece and not a well-balanced portrayal of the FCPA as it is replete with selective information, half-truths, and, worse information that is demonstratively false, see here.
An informative read here from the FCPAmericas blog titled “Localizing Compliance Programs in Latin America.”
“The compliance programs for Latin American subsidiaries of foreign companies often consist of translated versions of the program used at headquarters, without any (or just minor) adaptations. Oftentimes, this practice has the potential to negatively impact the ability of the program to operate at optimum levels and can lead to problems. Here are five practical steps that companies can take to maximize the efficiency of their compliance programs in Latin America.”
An interesting read here from Robert Appleton titled “Despite Prosecutions, Corruption Levels Stay the Course.”
“In light of this [increased corruption enforcement] activity [around the world], one might expect that corruption levels would decrease. But they have not. Why hasn’t it happened? The focus of this piece is to propose some possible explanations for this anomaly.”
A good weekend to all.