Many Foreign Corrupt Practices Act defendants and their counsel who actively litigate against the DOJ ultimately run into the same issue.
The DOJ’s argument in briefing that there are no FCPA cases on the disputed issue or that other cases (including appellate and Supreme Court decisions) are not FCPA cases.
The DOJ’s argument ignores that in many instances the DOJ meaningfully controls whether there will be FCPA legal decisions authored by judges.
In 2014, I filed an amicus brief urging the Supreme Court to accept U.S. v. Esquenazi to address the disputed legal issue of whether employees of alleged state-owned or state-controlled enterprises are “foreign officials” under the FCPA.
The FCPA’s legislative history and other relevant canons of statutory interpretation indicate that the answer is no and I remain convinced that the Supreme Court would agree given the Court’s general consistency over the past decade or rejecting overly expansive DOJ interpretations of criminal statutes.
However, it was not a huge surprise that the Supreme Court declined to hear the case because there was (and remains) only one appellate court decision on the specific issue (the 11th Circuit’s flawed Esquenazi decision).
In relevant part, my amicus brief stated:
“An issue that has developed so little in the lower courts would not ordinarily satisfy the criteria for this Court’s review. However, the way FCPA enforcement actions are resolved makes it unlikely that lower courts will often consider this issue in the foreseeable future. The vast majority of FCPA investigations are resolved through out-of-court settlements including non-prosecution agreements (“NPAs”), deferred prosecution agreements (“DPAs”), and other administrative settlements not subject to judicial scrutiny. As a result, courts rarely construe the FCPA. The court below was the first Court of Appeals to address this statutory issue since Congress first enacted the FCPA thirty-seven years ago. Given these dynamics, there is little reason to believe that other federal appellate courts will examine this issue in the foreseeable future. Yet the Eleventh Circuit’s erroneous interpretation of the statute is likely to affect numerous future FCPA enforcement actions — negotiated and resolved in the absence of judicial scrutiny and in the shadow of scant precedent interpreting the FCPA — and thus the conduct of countless businesses and individuals subject to the FCPA.”
Over a decade has passed and the issue remains the same.
As the FCPA approaches 50, many disputed issues have not been subject to judicial scrutiny, appellate court FCPA jurisprudence is rare, and Supreme Court FCPA jurisprudence is non-existent.
This recent post highlighted the motion to dismiss filed in a pending FCPA (and related matter).
Once again, FCPA counsel ran into the same general issue described above and here is what counsel stated:
“The government claims that Mr. Piñate “seek[s] to stretch the holding of Snyder to encompass a statute not before the Snyder court,” and notes that Mr. Piñate “spend[s] nearly seven pages arguing that the FCPA does not criminalize gratuities.” It is undisputed that the Supreme Court did not interpret the FCPA in Snyder, and Mr. Piñate never suggested that it did. What Snyder does offer, however, is a framework for lower courts to use in interpreting similar criminal statutes.
Rather than engage with this framework and explain why it views the Supreme Court’s ruling in Snyder as inapposite, the government simply dismisses Snyder as “not an FCPA case.” This is the government’s choice, but it is a befuddling one. Every day, attorneys make arguments about what the law means to judges in courtrooms around the country. They often do so without the benefit of clear, controlling precedent; indeed, where such on-point precedential authority exists, it often means there is nothing to argue about. Attorneys and judges use other cases, analogizing and distinguishing them appropriately, to determine how those cases’ holdings, interpretive approaches, and even dicta might offer guidance for the case or controversy at hand.
Indeed, the government’s response is inconsistent with the basic premise of the common law system. The government suggests that because Snyder relates to a different bribery statute, it is useless to this Court in interpreting a similar question. But the government does not offer an alternative framework for how this Court should interpret the FCPA to determine whether it extends to gratuities. [A footnote states: As far as undersigned counsel is aware, the Supreme Court has never interpreted the FCPA. If courts cannot use other Supreme Court opinions, subject to the usual processes of interpretation, to understand the FCPA, it is unclear what basis the government proposes this Court use to understand the statute.] Should the Court interpret the FCPA’s text? The statutory structure? The legislative history? If so, the Court would merely be applying the Snyder framework anyway.
In his original motion, Mr. Piñate explored the Supreme Court’s step-by-step approach to determining whether a criminal bribery statute that applies to state and local officials, and explained how that approach informs this Court’s interpretation of a similar statute. Mr. Piñate need not rehash that here, because the government does not engage with it. The similarities between the FCPA and Section 666 are striking, and any reader of Snyder should have no doubt that, if asked, the Eleventh Circuit and Supreme Court would rule the same way regarding the FCPA.
No wonder the government would rather not address Snyder. Instead, it discusses United States v. Wakil, No. 21-cr-20406, 2023 WL 2898510, at *5 (S.D. Fla. 2023). In Wakil, an FCPA case which the government eventually dismissed voluntarily, the defendant argued prior to trial that the indictment failed to comport with the FCPA’s requirement that a bribe be paid to “obtain or retain business.” The government’s long quote from Magistrate Judge Reid’s report and recommendation in Wakil addresses a different issue – not the issue before the Court.
That’s not a surprise, because Wakil predated Snyder. Magistrate Judge Reid and this Court did not consider gratuities issues in Wakil, because they were not presented to the Court, and because the Supreme Court had not yet set forth, in scrupulous detail, why statutes that do not explicitly criminalize gratuities should not be read to criminalize gratuities. The dicta offered from Wakil offers little in persuasive value because, since Wakil, the Supreme Court has explained what differentiates bribes from gratuities: timing.
This Court should ask why the government does not want to touch Snyder. No doubt it knows that the Supreme Court would never bless its aggressive approach to the FCPA. But this Court need not punt on this question simply because the government would rather ignore it.”
