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Perhaps The Disclosure Approach Wasn’t Such A Bad Idea After All


This recent Wall Street Journal article titled “If You Solicit Bribes, This Fellow Wants to Punch You In the Face” caught my eye. It details a Thai man, who after years of paying bribes, became fed up with “what passes for business as usual in Bangkok” and launched a “nightly television show where he runs through the various demands for bribes and kickbacks that he says many people here endure.”

Whether this approach is reducing corruption is a debatable point, but it serves as a useful reminder that the FCPA’s current prohibition approach was not the only approach Congress considered in the mid-1970’s when considering the so-called foreign corporate payments problem.

The other approach, consistent with Louis Brandeis famous quote “sunlight is said to be the best of disinfectants,” was a disclosure approach.

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Second Circuit Hears Oral Argument In U.S. v. Hoskins

Judicial Decision

Judicial scrutiny of Foreign Corrupt Practices Act enforcement is rare. Appellate court judicial scrutiny even more rare. Listening to appellate court oral arguments in an FCPA appeal, let’s just say you can count those instances on one hand and have a couple of fingers left over.

Last week the Second Circuit heard oral argument in U.S. v. Hoskins and you can listen to the arguments here.

The issue before the court, as stated in the DOJ’s brief, is as follows.

“Whether a foreign person (who does not reside in the United States) can be liable for conspiring or aiding and abetting a U.S. company to violate the Foreign Corrupt Practices Act if that individual is not in the categories of principal persons covered in the statute.”

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You Gotta Be Kidding Me


Reading some Foreign Corrupt Practices Act “commentary” sometimes leaves me scratching my head and thinking to myself “you gotta be kidding me.”

Case in point, Michael Volkov recently wrote in this post on his Corruption, Crime & Compliance blog as follows:

“A lot has been written on the vagueness or lack of clarity surrounding the FCPA. Those opinions are not very persuasive and ignore common sense, legal concepts and good faith. […] Drawing the lines around FCPA behavior is not as hard as many claim. Those that make such baseless claims are only justifying their own existence or engaging in a transparent marketing ploy.”

At the risk of making baseless claims, justifying my own existence or engaging in a transparent marketing ploy, let me share with you a long list of judicial decisions in which federal court judges have found various provisions of the FCPA to be vague or lacking in clarity.

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The Foreign Corrupt Practices Act Turns 39


Today our favorite statute, the Foreign Corrupt Practices Act, turn 39.

President Jimmy Carter’s December 20, 1977 signing statement stated in full as follows.

“I am pleased to sign into law S. 305, the Foreign Corrupt Practices Act of 1977 and the Domestic and Foreign Investment Improved Disclosure Act of 1977. During my campaign for the Presidency, I repeatedly stressed the need for tough legislation to prohibit corporate bribery. S. 305 provides that necessary sanction. I share Congress’s belief that bribery is ethically repugnant and competitively unnecessary. Corrupt practices between corporations and public officials overseas undermine the integrity and stability of governments and harm our relations with other countries. Recent revelations of widespread overseas bribery have eroded public confidence in our basic institutions.

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