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Second Circuit Once Again Hears Appeal In U.S. V. Hoskins

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To call U.S. v. Hoskins a long-drawn out Foreign Corrupt Practices Act enforcement action would be an understatement.

In 2013, the DOJ criminally charged Lawrence Hoskins (a United Kingdom national and former senior vice president for the Asia region for France-based Alstom) with conspiracy to violate the FCPA’s anti-bribery provisions among other charges. (See here for the prior post). The conduct at issue alleged occurred between 2002 and 2004.

Unlike certain of his co-defendants who pleaded guilty, Hoskins put the DOJ to its burden of proof and at the trial court level argued in a motion to dismiss that the FCPA charges should be dismissed “on the basis that [the indictment] charges a legally invalid theory that he could be criminally liable for conspiracy to violate the FCPA even if the evidence does not establish that he was subject to criminal liability as a principal, by being an “agent” of a “domestic concern.” (See here for the prior post).

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Motion To Dismiss Argues That The DOJ’s Case “Continues The Worrisome Trend By The DOJ To Stretch The Reach Of The United States’ Criminal Statutes Beyond Congress’ Intent In An Attempt To Police The World”

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As highlighted in this prior post, in 2019 Daisy Rafoi-Bleuler (a citizen of Switzerland and partner in a Swiss Wealth Management firm) became the latest individual to be criminally charged with Foreign Corrupt Practices Act offenses for allegedly directing bribes to various individuals at Venezuela’s state-owned and state-controlled energy company, PDVSA.

According to the DOJ, Rafoi opened Swiss bank accounts and facilitated financial transactions for various co-conspirators to help facilitate the bribery scheme.

As highlighted in this post, in late October 2020, Rafoi-Bleuler (through her counsel Matthew Reinhard, Andrew Wise, and Margot Laporte at Miller & Chevalier) filed a motion to dismiss the criminal charges against her.

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Ng Files Motion To Dismiss

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As highlighted in this prior post, in November 2018 the DOJ criminally charged former Goldman Sachs executives Tim Leissner and Ng Chong Hwa (Roger Ng) (along with Low Taek Jho – Jho Low) with Foreign Corrupt Practices Act offenses for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.

Leissner pleaded guilty and in October Goldman Sachs resolved a net $1.66 billion FCPA enforcement action based on the same conduct. (See additional posts here and here).

Ng is mounting a defense and recently filed this motion to dismiss (an entire section of which is redacted). As highlighted below, Ng argues that the DOJ’s case against him suffers from several factual errors and legal deficiencies. Ng also suggests that the DOJ scripted Leissner’s guilty plea and that Goldman’s DPA was entered into for reasons of risk aversion and otherwise compromises his ability to defend himself.

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DOJ Files Brief In Another Second Circuit Appeal In The Hoskins Matter

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Why?

That was the question posed in this March when the DOJ filed a notice of appeal to the Second Circuit of Judge Janet Bond Arterton’s February 26th grant of Lawrence Hoskins’s motion for acquittal on the seven FCPA charges he was convicted of by the jury. (See here for the prior post. As noted in the post, Judge Arterton denied Hoskin’s motion for acquittal on the five money laundering charges he was convicted of by the jury).

As highlighted in this post, thereafter Judge Arterton significantly rejected the DOJ’s 7-9 year sentencing recommendation on the money laundering charges and sentenced Hoskins to approximately one year in federal prison. Even if the Second Circuit would overturn Judge Arterton’s acquittal (a process that would likely take a few years given that the last Second Circuit appeal in Hoskins matter took approximately two years), Judge Arterton already ruled on February 26th that Hoskins’s motion for a new trial was conditionally granted if her judgment of acquittal was later vacated or reversed on appeal.

Nevertheless, the DOJ is plowing ahead with its appeal as it filed this brief earlier this week.

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SEC’s Recent FCPA Complaint May Reveal Benefits Of Company Compliance But Pleadings May Be Deficient

Analysis

A guest post from Arnall Golden Gregory LLP attorneys Cory Kirchert and Adriaen Morse. Previously both Kirchert and Morse were Senior Counsel in the SEC’s Enforcement Division.

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Introduction

The U.S. Securities and Exchange Commission (“SEC”) recently filed a case alleging violations of the anti-bribery provisions of U.S. securities laws that raises more questions than it answers. As most practitioners in this area know, press releases (or “litigation releases”) that accompany the announcement of new enforcement cases often discuss a company’s cooperation, in particular when the case came to the SEC’s attention via company self-disclosure or when the SEC wishes to signal that the company’s cooperation contributed to a low penalty or no penalty.

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