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?
This law firm alert asserts “the U.S. Court of Appeals for the Second Circuit recently upheld the acquittal of former Alstom S.A. (Alstom) executive Lawrence Hoskins on Foreign Corrupt Practices Act (FCPA) charges — rejecting the expansive view of extraterritorial jurisdiction that the Department of Justice (DOJ) endeavored to apply through its use of agency principles.” However, the Second Circuit’s decision was not about extraterritorial jurisdiction but rather the purely factual and evidentiary issue of “whether there was an agency relationship between Hoskins and Alstom Power Inc. That was not a finding about the reach or scope of the FCPA, it was simply a court acknowledging that a term is explicitly contained in the FCPA – “agent of … domestic concern” – and deciding whether the evidence was sufficient to satisfy the common law meaning of agency.
As highlighted in this post, recently the DOJ dismissed FCPA (and related) criminal charges against Joseph Baptiste and Roger Boncy for alleged Haitian bribery scheme after the DOJ finally admitted exculpatory evidence existed that was not turned over to the defense. It was the latest in a long line of embarrassing (and stunning) DOJ setbacks in individual FCPA enforcement actions. (See here, here and here).
This recent law firm authored article is titled “Dropped FCPA Case Holds Key Reminder For Defense Attys” and states:
“The Baptiste-Boncy saga shows that, despite the many cards held by the DOJ in FCPA prosecutions, there is still value to using the full gamut of a defense attorney’s tools to challenge the DOJ’s positions, especially when individual defendants can face jail time.
[…]
The ultimate outcome of the Baptiste/Boncy prosecution serves as a reminder of the need for defense counsel in all types of criminal cases, including FCPA-related cases, to hold the DOJ to the department’s own policies and important legal precedents — including to Brady disclosures and other key issues.”
Query – why should defense counsel in criminal cases (FCPA or otherwise) have to be reminded to do their jobs and advocate for their clients?
Even so, the article is spot-on when it says at follows:
“Read in the context of other recent cases involving individuals, the result here reiterates that, when given the opportunity, the federal courts are likely to respond to defendants’ arguments on the limitations to the DOJ’s often-assertive legal interpretations of the FCPA’s key provisions.
Because the stakes in individual prosecutions are so high for the defendants, these cases are often the forums in which judicial interpretations of the FCPA that can alter the general enforcement landscape occur.”
Regardless of the additional recent spate of perplexing FCPA commentary, the Hoskins Second Circuit decision and the DOJ’s dismissal of criminal charges against Baptiste and Boncy further undermines the foolish misinformation spewed by the FCPA Blog that only a “tiny percentage of individual FCPA defendants” prevail over the government when the government is put to its ultimate burden of proof.
