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Um, Excuse Me But …

Excuse Me

Recent posts here and here have highlighted briefing in Ng Lap Seng’s appeal as well as Dmitry Firtash’s motion to dismiss.

As highlighted below, reading these briefs caused a few um, excuse me but type moments.

For instance, I have long been concerned about the seeming lack of FCPA depth of FCPA enforcement attorneys.

Indeed, in the Firtash motion to dismiss the DOJ argues that the defendant’s interpretation of certain legislative history is incorrect because – in the words of the DOJ – “the FCPA, at its inception, was a corporation-focused statute. S. 305, 95th Cong. (Jan. 1977) (applied expressly only to an “issuer” or a “domestic concern”)” [as opposed to an individual-focused statute].

Um, excuse me but the FCPA’s definition of “domestic concern” has always included certain individuals (see here for the original FCPA enacted in 1977).

In the Seng briefing, on at least three separate occasions concerning different issues, the DOJ stated something along the following lines: the defendant’s position is wrong because the defendant can’t point to any FCPA case to support his position.

Um, excuse me but a major reason for the general lack of FCPA case law is because of how the DOJ (and SEC) have chosen to enforce the FCPA.

Indeed, this dynamic was a major focus of my amicus brief in Esquenazi foreign official case encouraging the Supreme Court to grant cert in the matter. The brief states:

“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.”

Further, most corporate enforcement actions lack individuals charges. For instance the DOJ/SEC have used the enforcement theory that healthcare professionals are “foreign officials” under the FCPA approximately 30 times but this theory has never been used against an individual. Moreover, when there are individual charges the DOJ/SEC may simply pull the case (and escape judicial scrutiny) if they sense they will lose (see e.g., Carson case, Jackson/Ruehlen matter, etc).

Given these dynamics, I was happy to see defense counsel in the Seng matter state:

“The government notes that no court has yet held the FCPA’s “improper advantage” provision unconstitutionally vague. That is presumably because it appears no court has ever considered this issue. Nor has any court ever given the provision the interpretation the government urges here.”

On final, um excuse me but … moment.

This article concerning U.S. state, county, etc. subsidies to corporations quotes the former mayor of Kansas City as follows:

“It’s illegal for an American firm to accept a bribe in Brazil,” he says, referring to the Foreign Corrupt Practices Act. “But they can accept a bribe in the United States. They can accept $102 million. It is absolutely straight-up corrupt.”

Um excuse me but the FCPA prohibits the offering or payment of money or things of value to “foreign officials” to obtain or retain business. The FCPA’s anti-bribery provisions have absolutely nothing to do with American firms “accepting a bribe” in a foreign country.

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