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What Congress Intended The Third-Party Payment Provisions To Capture As Well As Not Capture

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Call me old-fashioned or a rule of law purist.

However, in this the Foreign Corrupt Practice Act’s 40th year, it is prudent to take a step back and ponder what Congress actually intended to capture, and not capture, by enacting the FCPA.

Indeed, as the recent Hoskins decision yet again demonstrated (see here) a common thread in most FCPA judicial decisions is judges consulting the legislative history in interpreting the FCPA.

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U.S. v. Hoskins And The Big Picture

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This prior post highlighted the Second Circuit’s recent decision in U.S. v. Hoskins in which the court rejected the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national.

This post continues the analysis by highlighting various “big picture” issues.

Legislative History Matters

In large part, the Second Circuit’s opinion was based on the FCPA’s legislative history demonstrating once again that legislative history matters.

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Second Circuit Rejects DOJ’s Expansive Jurisdictional Theory Of Prosecution In U.S. v. Hoskins

Judicial Decision

Appellate decisions construing the Foreign Corrupt Practices Act are extremely rare. Thus, many in the FCPA community have been awaiting the Second Circuit’s long-awaited (oral argument was held in March 2017 – see here) decision in U.S. v. Hoskins.

In this decision, the court rejected the DOJ’s expansive jurisdictional theory of prosecution against Lawrence Hoskins, a U.K. national. In many respects, the Second Circuit’s decision was based on the FCPA’s legislative history – demonstrating once again that the legislative history matters (see here for a prior post).

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The False Narrative That Prior To The FCPA Foreign Bribery By U.S. Companies Was Rampant

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A common narrative about the Foreign Corrupt Practices Act is something along the following lines: before the FCPA was enacted in 1977 foreign bribery by U.S. companies was rampant. (See here for instance: “Congress enacted the FCPA in the 1970s to address the rampant bribery of foreign officials by U.S. companies.”)

Even though certain problematic corporate foreign payments were unearthed in the mid-1970s, the notion that foreign bribery by U.S. companies was rampant prior to the FCPA is a false narrative. Indeed, extensive efforts were made during the legislative process to place the conduct in the proper context.

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U.K. – Don’t Get Your Knickers In A Twist Regarding The Bribery Act Review

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As highlighted in this recent roundup, the U.K. House of Lords announced that it “appointed an ad hoc Select Committee to consider and report on the Bribery Act 2010.” The Chairman of the Committee stated: “now is the opportune time for post-legislative scrutiny.”

However, as noted in this article “non-governmental organisations reacted with dismay to the review by the Lords committee, saying that it should not lead to any rolling back of the legislation.” (See also here).

This post encourages those in the U.K. not to get their knickers in a twist. The post provides some historical context about the FCPA- namely that soon after the passage of the FCPA in 1977 the U.S. government undertook various reviews of the FCPA.

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