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Tax Law And The FCPA’s Legislative History

By on April 14, 2023 in Legislative History, Tax Issues
tax

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

By on August 16, 2022 in FCPA Jurisprudence, Legislative History, OECD
Lohier

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

By on June 24, 2022 in Legislative History, SEC
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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Richard Shine’s 1982 Lecture – “Enforcement Of The FCPA By The Department Of Justice”

By on June 16, 2022 in Enforcement Agency Policy, Enforcement Agency Speeches, Foreign Official, Foreign Officials, Foreign Policy, Legislative History
1982

The year was 1982 and Richard Shine was Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit).  Shine gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).

Three things stand out from Shine’s lecture.

First, the lecture is populated with references to the FCPA’s legislative history.  On one level, this is not surprising given that in 1982 the DOJ was likely still finding its way as to the FCPA and its enforcement and it is logical that the legislative history – which evidences Congressional intent – would be a guide.

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