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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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Perplexed

perplexed

I am perplexed by some commentary regarding the Second Circuit’s recent decision in U.S. v. Hoskins (see here for the prior post).

For instance this law firm publication suggests that the Second Circuit limited the reach of the FCPA’s anti-bribery provisions.

This law firm publication states that the Second Circuit issued a decision regarding the scope of the FCPA.

Neither of these assertions are true.

First, some background.

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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 Criminal FCPA (And Related Charges) Against Rafoi-Bleuler For Lack Of Jurisdiction And Also Hints That The Term “Agent” In The FCPA Is Unconstitutionally Vague

Dismissed

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 and related offenses for allegedly directing bribes to various individuals at PDVSA (Venezuela’s state-owned and state-controlled energy company).

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 filed a motion to dismiss the criminal charges. In summary fashion, the motion argued: “The indictment of Ms. Rafoi-Bleuler, a citizen and resident of Switzerland, continues the worrisome trend by the Department of Justice to stretch the reach of the United States’ criminal statutes beyond Congress’ intent in an attempt to police the world. Despite having violated no laws in Switzerland and having no contact with the United States …, Ms. Rafoi-Bleuler finds herself hailed into a U.S. court in contravention of clear statutory language, legal precedent, and international norms. Courts have increasingly, and correctly, rejected such attempts by the government and this Court should continue as well …”.

Recently, Judge Kenneth Hoyt (S.D. Tex.) granted the motion to dismiss.

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

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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