Call me old-fashioned, but when you voluntarily run a website devoted to a specific law (and have numerous paid advertisers with blinking and flashing ads placed on your website) you ought to have a basic obligation to get things right about that specific law. This includes being knowledgeable about the rather limited case law that exists regarding specific topics relevant to the specific law that is the focus of your website.
Nevertheless, the FCPA Blog is at it again with its FCPA misinformation.
This post, about the FCPA’s facilitation payment exception, states: “The burden of proof is always on the one asserting the exception as a defense.”
This is false.
Indeed the specific issue of who (the government or the defendant) has the burden on proof regarding the FCPA’s facilitation payments exception was specifically litigated in SEC v. Jackson and the judge concluded that the government has the burden of negating the facilitation payments exception. (See here).
In the words of Judge Keith Ellison (S.D. Tex.):
“The Court finds that the evolution of the statute in this case strongly supports the conclusion that the SEC must bear the burden of negating the “facilitating” payments exception. The facilitating payments exception is best understood as a threshold requirement to pleading that a defendant acted “corruptly.”
More broadly, the Supreme Court held last term in Ruan v. U.S. that in a statute that provides an exception or exemption to prosecution (which the FCPA’s anti-bribery provisions most certainly does), the government must prove beyond a reasonable doubt that a defendant knew that he did not fall within the scope of that exception. (See here). As stated by the court:
“A provision of the Controlled Substances Act, codified at 21 U. S. C. §841, makes it a federal crime, “[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,” such as opioids. Registered doctors may prescribe these substances to their patients. But, as provided by regulation, a prescription is only authorized when a doctor issues it “for a legitimate medical purpose . . . acting in the usual course of his professional practice.” In each of these two consolidated cases, a doctor was convicted under §841 for dispensing controlled substances not “as authorized.” The question before us concerns the state of mind that the Government must prove to convict these doctors of violating the statute. We hold that the statute’s “knowingly or intentionally” mens rea applies to authorization. After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.”
Nevertheless, the FCPA Blog wants you to think that “the burden of proof is always on the one asserting the [facilitation payments] exception as a defense.”
Dear FCPA Blog: Please stop spreading FCPA misinformation.
