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The FCPA Turns 42

42

Today our favorite statute, the Foreign Corrupt Practices Act, turns 42.

In signing the FCPA into law, President Jimmy Carter stated:

“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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Flashback To The Mid-1970’s Regarding The Demand Side

1970s

Previous posts here and here discussed the recently introduced Foreign Extortion Prevention Act which seeks to “prohibit a foreign official from demanding a bribe” by amending – not the FCPA – but rather 18 USC 201 (the so-called domestic bribery statute).

In introducing the bill, Representative John Curtis (R-UT), one of the co-sponsors, stated. “Currently, a business being extorted for a bribe can only say ‘I can’t pay you a bribe because it is illegal and I might get arrested.’ This long-overdue bill would enable them to add, ‘and so will you.”

This remark caused a mid-1970’s flashback because, as highlighted below, it largely mirrors the policy rationale of those who supported addressing the so-called foreign corporate payments through a disclosure approach and not the criminalization approach that ultimately became the Foreign Corrupt Practices Act.

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

FCPAat40

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

bigpicture

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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