Category: Foreign Evidence Issues

Foreign Evidence – Due Process Issues Raised In Hobson Enforcement Action

The FCPA’s extensive legislative history contains concerns about the due process of individuals charged with violating the Foreign Corrupt Practices Act.

Representative Bob Eckhardt (D-TX) was particularly concerned about this issue and he stated that if an individual is “brought to court in the United States and the witnesses are halfway across the world, it seems to me that he is at a disadvantage …”. Eckhardt likewise expressed concern about imposing a burden on an individual defendant “far away from the point where the evidence can be obtained.”

The FCPA’s legislative history also contains a report by The Association of the Bar of the City of New York expressing concern for the due process rights of individual defendants charged with violating the FCPA.

“To Preserve The Integrity Of The Truth-Seeking Process,” An FCPA Trial Is Again Adjourned

The FCPA’s extensive legislative history contains concerns about the due process of individuals charged with violating the Foreign Corrupt Practices Act.

Representative Bob Eckhardt (D-TX) was particularly concerned about this issue and he stated that if an individual is “brought to court in the United States and the witnesses are halfway across the world, it seems to me that he is at a disadvantage …”. Eckhardt likewise expressed concern about imposing a burden on an individual defendant “far away from the point where the evidence can be obtained.”

The FCPA’s legislative history also contains a report by The Association of the Bar of the City of New York expressing concern for the due process rights of individual defendants charged with violating the FCPA.

MLATs: They Are Not Just For DOJ Any More (Maybe)

Today’s post is from Sara Kropf. A shorter version of this post was published by Bloomberg News on May 14, 2024. (See here).

I’ve written before about the Department of Justice’s questionable tactics in an FCPA case against two former executives for Cognizant Technology Solutions. The two executives eventually lost their bid to suppress certain statements made during an internal investigation interview by the company.  But they continue to battle DOJ. Their efforts led the trial judge to take the extraordinary step of effectively forcing DOJ to help the defense secure exculpatory overseas evidence through a mutual legal assistance treaty or MLAT.

The case is an example of how a trial judge can exercise discretion to help ensure a fair trial simply by refusing to take what DOJ lawyers say at face value. It’s also a master class in persistent lawyering; by refusing to abandon the battle to obtain this key evidence, the defense may win the war.

Glencore … In Its Own Words

As highlighted here, in May 2022 Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland) resolved a net $443 million FCPA enforcement action.

According to the DOJ: “From at least in or about 2007 up to and including in or about 2018, Glencore, through certain of its employees and agents, while acting on behalf of Glencore, together with its co-conspirators, knowingly and willfully conspired and agreed with others to corruptly provide more than $100 million in payments and other things of value to various intermediaries with the intent that a significant portion of these payments would be used to pay bribes to and for the benefit of foreign officials to secure an improper advantage and to influence those foreign officials in order to obtain or retain business in Nigeria, Cameroon, Ivory Coast, Equatorial Guinea, Brazil, Venezuela, and the Democratic Republic of Congo.”

A recent sentencing submission by Glencore makes for an interesting read.