There’s provocative new FCPA scholarship from Kyle Sheahen, left, UCLA Law ’10 and an incoming associate at the New York office of King & Spalding.
He told us about it in this note:
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Dear FCPA Blog,
It’s no secret that FCPA defendants fare poorly at trial. There are many reasons for that, but I wanted to look at the factor most amenable to legislative fix – the hollow nature of the FCPA’s affirmative defenses.
I recently finished an article analyzing the two affirmative defenses under the FCPA. Partly in response to the FCPA Blog’s post Calling All Pundits, I assess the promotional expenses defense in detail and also cover the local law defense (including the Southern District of New York’s decision in United States v. Kozeny).
The article concludes that after over twenty years as part of the FCPA, the two affirmative defenses added to the statute in the 1988 amendments have provided little meaningful protection for FCPA defendants. Neither defense has ever been successfully invoked by an FCPA defendant at trial.
I go on to recommend that if the right to trial by jury is to mean anything in today’s world, individual and corporate defendants must have the actual ability to raise the affirmative defenses contemplated by the statutory scheme. If Congress wants FCPA defendants to have any chance at all, it must take action to ensure that the defenses are meaningful.
The article is slated to appear in the Wisconsin International Law Journal in early 2011. In the meantime, I welcome any comments or suggestions from your readers. I can be reached at [email protected]
The current working version of the article — titled “I’m Not Going to Disneyland: Illusory Affirmative Defenses Under the Foreign Corrupt Practices Act” — can be downloaded from SSRN.