b'has historically used to ensure that companies effortsFCPA district courts in 2020. In particular, there were to improve their compliance are in line with corporatetwo major judicial challenges to the DOJs individual criminal settlements. Following a settlement, a monitorenforcement efforts, in United States v. Hoskins, and reviews a companys operations and complianceUnited States v. Baptiste & Boncy, with both leading to program, reports findings to the regulators and, inthe reversal of FCPA-related jury convictions. consultation with the company and prosecutors, First, in February 2020, the U.S. District Court for the makes recommendations that management must District of Connecticut overturned a jury verdict against implement. However, in recent years, the use of former Alstom SA executive Lawrence Hoskins on government-imposed monitors has become dramati- the FCPA counts (while maintaining the conviction on cally less common. This seems to be consistent withmoney laundering grounds). U.S. Court of Appeals for the updated Department of Justice Manual 9-47.120,the Second Circuit previously determined that Hoskins which codified the notion that corporate monitors are a foreign nationalwas outside the DOJs jurisdiction unnecessary if, at the time of resolution, a company hasas a primary actor. The key FCPA question at trial was, implemented an effective compliance program.therefore, whether the DOJ could prove that Hoskins Herbalife is an example in 2020 of a settled enforcementwas acting as an agent of a U.S. person. A jury said action that noticeably did not impose an independentyes, but on February 26, 2020, the Honorable Janet corporate monitor. The DOJ even pointed out in itsBond Arterton set aside the FCPA guilty verdicts. The deferred prosecution agreement that, due to HerbalifesDOJ and Hoskins have each appealed the unfavorable extensive remedial measures prior to resolution,portions of the Judges decision to the Second Circuit in conjunction with an agreement by the company(the DOJ appealed the Courts ruling on the FCPA to report directly to the DOJ on further remediationcounts, whereas Hoskins appealed the Courts ruling efforts, that an independent compliance monitor wason the money laundering convictions). A decision is unnecessary. expected in 2021.Uptick In Individual FCPA Enforcement Actions Second, in March 2020, the Honorable Allison Results in Increased Trials and, Potentially, Burroughs of the U.S. District Court for the District of Jurisprudence Massachusetts granted a new trial for retired U.S. Army Jury trials in the FCPA landscape have historically beencolonel Joseph Baptiste and former lawyer and Haitian uncommon, primarily because most FCPA defendantsAmbassador-at-Large Roger Richard Boncy, who were in prior years have been corporate entities. Corporateconvicted in June 2019 for allegedly soliciting bribes defendants are generally more reluctant to subjectfrom two undercover FBI agents who were posing themselves to the inherent risk associated with trialsas prospective investors in a proposed $84 million and potential convictions, in light of fiduciary duties toport development project in Haiti. Baptiste and Boncy shareholders, and more inclined towards some formhad been convicted of FCPA, Travel Act, and money of settlement. In contrast, individual defendants facinglaundering conspiracy charges after a nine-day jury the prospect of imprisonment and huge monetary finestrial. However, Judge Burroughs, in a highly unusual have generally proven more willing to proceed to trial.move, granted a new trial for both men based on the ineffective performance of Baptistes trial attorney. The In 2020, the DOJ continued to emphasize its increaseddecision is on appeal. focus on individual accountability and liability for FCPA violations. As discussed below, these cases includeStatutory Issuesa mix of executive and corporate managers. Of theThe 2020 enforcement actions also presented a few 14 individual enforcement actions in 2020, chargessubstantive statutory related issues within the FCPA against nine individuals brought by the DOJ arose fromcontext:enforcement actions against corporate entities it had launched in prior years. As the DOJ has increasinglyForeign Officialscharged individuals, more FCPA and FCPA-relatedIn February 2020, the DOJ brought a case with an chargesand legal issuesare making their way tounusual assertion that employees of a company court. As a general matter, as more cases go to court,based and registered in the United States are there is an increased opportunity for the developmentforeign officials within the meaning of the FCPA. of FCPA case law, as well as challenges to the broadIn Farias-Perez, the DOJ alleged that improper statutory contours that have been drawn by regulatorspayments to employees of Citgo Petroleum, a over time through settlements, as well as publishedHouston-based corporation registered in Delaware, DOJ and SEC guidance.were violations of the FCPA anti-bribery provisions because Citgo is a wholly-owned subsidiary of Judicial Challenges to Individual Enforcement Efforts PDVSA, Venezuelas state-owned oil company. There were notable developments pertaining to the 9'