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Perplexed II

perplexed

FCPA Inc. is an active group of writers. Give them a development and the ink starts flowing. This is a good thing.

However, as highlighted in this recent post some FCPA commentary regarding recent developments has been perplexing.

As highlighted below, I continue to be perplexed by certain FCPA commentary.

This law firm alert regarding the Second Circuit’s recent Hoskins decision (see here) is titled “Second Circuit Presents U.S. Companies Historic Opportunity to Defend Against FCPA Liability.” Query how the Second Circuit’s determination whether the government provided sufficient evidence at trial of agent / agency (a term / concept always in the FCPA – that the parties agreed should be interpreted pursuant to its common law meaning) provides a “historic opportunity” to defend FCPA cases?

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Second Circuit – Once Again – Sides With Hoskins On FCPA Issue

secondcircuit

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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Court Dismisses FCPA Charges Based On Lack Of Jurisdiction, Lack Of Due Process, Vagueness, And Statute Of Limitation Issues

Dismissed

As highlighted in this prior post in September 2019 the DOJ announced the unsealing of a criminal indictment against (among others) Paulo Casqueiro-Murta in connection with an alleged bribery scheme involving Venezuela’s state-owned and state-controlled energy company, PDVSA.

According to the DOJ, Murta (a citizen of Portugal and Switzerland) provided financial services to various co-defendants (including former employees of PDVSA) in connection with various bribery schemes and he was charged with directly violating or assisting others in violating the FCPA and money laundering laws.

Recently, Judge Kenneth Hoyt (S.D. Tex) granted Murta’s motion to dismiss the charges based on lack of jurisdiction, lack of due process, vagueness, and statute of limitation issues.

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