Brief filed: 10/20/2020
United States v. Pierucci (Hoskins)
2nd Circuit Court of Appeals; Case No. Nos. 20-842(L), 20-1061(CON), 20-1084(CON)
Decision below No. 12-cr-328, 2020 WL 914302 (D. Conn. Feb. 26, 2020)
The Foreign Corrupt Practices Act (FCPA) applies to “an officer, director, employee, or agent” of a domestic concern or issuer. The Government argues that “agent” means a common-law agent, but that reading of the statute is entirely at odds with both the FCPA’s plain text and the Act’s legislative history. Congress intended for “agent” to mean a specific type of individual: a foreign intermediary used to pay bribes. If “agent” meant “common-law agent,” as the Government says, there would have been no need for Congress to specify “officer” or “employee”—both are “common-law agents.” The legislative history also demonstrates that Congress had bribe-paying foreign “consultants” or “intermediaries” in mind when it crafted the FCPA to cover “agents.” Reading the word “agent” broadly would raise serious concerns about extraterritorial application that Congress specifically sought to avoid. Such a reading would also run afoul of well-established principles of lenity.
Richard M. Strassberg and James D. Gotta, Goodwin Proctor LLP, New York, NY; Andrew Kim, Goodwin Proctor LLP, Washington, D.C.; Emily M. Notini, Goodwin Proctor LLP, Boston, MA; Jeannie Rose Rubin and Daniel M. Gitner, Lankler Siffert & Wohl LLP, New York, NY; Lindsay A. Lewis, NACDL, New York, NY.