Judicial scrutiny of Foreign Corrupt Practices Act enforcement is rare. Appellate court judicial scrutiny even more rare. Listening to appellate court oral arguments in an FCPA appeal, let’s just say you can count those instances on one hand and have a couple of fingers left over.
Last week the Second Circuit heard oral argument in U.S. v. Hoskins and you can listen to the arguments here.
The issue before the court, as stated in the DOJ’s brief, is as follows.
“Whether a foreign person (who does not reside in the United States) can be liable for conspiring or aiding and abetting a U.S. company to violate the Foreign Corrupt Practices Act if that individual is not in the categories of principal persons covered in the statute.”
Prior posts here, here, here, here and here summarized the trial court’s ruling, the trial court’s denial of the DOJ’s motion for reconsideration, and the appellate briefing. Many of the disputed issue hinge primarily on the FCPA’s legislative history.
The DOJ did not get very far into its argument before being bombarded with numerous hypotheticals (and indeed the entire oral argument was heavy on hypotheticals).
A couple of general statements (not specific to the issues on appeal) from the DOJ caught my eye: (i) “Bribery is not the kind of thing that people don’t know is unlawful;” and (ii) Congress drafted the FCPA with certain assumptions in mind (yes indeed that is true and underminds the DOJ’s position in the “foreign official” challenges including Esquenazi).
Turning to defense counsel argument, approximately half of the argument concerned the non-FCPA specific issue of whether the Second Circuit even has jurisdiction to hear the interlocutory appeal.
After defense counsel argument, there was argument from amicus New York Counsel of Defense Lawyers in support of the defense position.
As indicated above, many of the disputed issues in the Hoskins appeal center on the FCPA’s legislative history and discussion of the legislative history was prominent in the oral argument. There are those who think the FCPA’s legislative history is unimportant (see here and here). Yet the Hoskins appeal demonstrates (as numerous other litigated FCPA cases have demonstrated – see here and here for prior posts) that the FCPA’s legislative history is indeed important in construing the FCPA.
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