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


Call me old-fashioned, but sometimes it is prudent to take a step back and ponder what Congress actually intended to capture, and not capture, by enacting the Foreign Corrupt Practices Act.

Indeed, a common thread in most FCPA judicial decisions is judges consulting the legislative history in interpreting the FCPA.

Most FCPA enforcement actions concern, in whole or in part, the conduct of various third parties.

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Tax Law And The FCPA’s Legislative History


To commemorate tax season, this post looks back to the FCPA’s legislative history and the tax implications of what Congress was investigating.

Upon discovery of the foreign corporate payments problem, Congress’s first task was to determine if the payments were adequately captured by existing law or whether a new law was needed. While certain existing laws did indirectly deal with various aspects of the problem, the prevailing view was that existing laws were deficient and that a new and direct legislative remedy was needed.

The primary focus of Congress’s investigation was whether the existing securities laws, tax laws, and/or antitrust laws adequately addressed the foreign corporate payments problem.

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Second Circuit Judge Raymond Lohier Is Just Plain Wrong


Compared to many other federal statutes, there has been little caselaw interpreting the Foreign Corrupt Practices Act in its 45 years of existence.

Substantive opinions by appellate courts are even more rare.

Thus, it is often a big deal when there is an appellate court decision interpreting the FCPA. Even a dissenting opinion – even a policy statement in a dissenting opinion – is notable.

As highlighted in this post, recently the Second Circuit – once again – sided with FCPA defendant Lawrence Hoskins on an FCPA issue. Specifically, the court held “that the district court properly granted Hoskins’s motion for judgment of acquittal for violations of the FCPA because there was no agency or employee relationship between Hoskins and Alstom Power, Inc.”

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In The Words Of Hester Peirce


This site is a big fan of SEC Commissioner Hester Peirce and this post highlights two recent statements she issued.

Neither of the statements are Foreign Corrupt Practices Act specific, but both are FCPA relevant.

Earlier this week, the SEC announced “settled charges against The Brink’s Company (“Brinks”) for requiring employees to sign restrictive confidentiality agreements prohibiting the disclosure of any financial or business information to third parties, without an exemption for potential SEC whistleblowers, from at least 2015 through 2019.”

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