In the Episode, I visit with Ephraim (Fry) Wernick. He is a partner in the Government Investigations and White-Collar Practice Group at Vinson & Elkins LLP in Washington, DC. Mr. Wernick joined V&E in June 2019 after serving 11 years as a federal prosecutor, including most recently as Assistant Chief of the U.S. Department of Justice, Criminal Division’s Fraud Section, where he supervised dozens of FCPA cases, including four of the largest-ever corporate criminal resolutions. Mr. Wernick now represents public and private companies and individuals in connection with government and internal investigations. Mr. Wernick is a graduate of Brown University and the University of Texas School of Law. In this podcast we take a deep dive into the jury instructions in the recent Hoskins FCPA trial. Some of the highlights include:
- What was the procedural history of the Hoskins case leading up to trial?
- The court’s agency instruction required the government to establish three elements: (1) “a manifestation by the principal that the agent will act for it”; (2) “acceptance by the agent of the undertaking”; and (3) “an understanding between the agent and the principal that the principal will be in control of the undertaking.” The court further instructed that “[t]he undertaking consists of the acts or services which the agent performs on behalf of the principal.” Hoskins’ arguments focus primarily on the element of control. Did the DOJ satisfy this element?
- At trial, the DOJ presented evidence that although Hoskins worked for the French parent, for the purposes of his actions around bribery and corruption, he was the agent of the US subsidiary. What was some of evidence presented at trial to show agency? Will it be enough to satisfy the Second Circuit definition in the inevitable appeal?
- At the ACI National Conference, Assistant Attorney General Brian Benczkowski said that the DOJ would analyze each case individually to determine if there was such an agency relationship present. What will the DOJ likely take into account?
- Might there be further clarification from the trial court or Second Circuit?
- Does the DOJ trial win against Hoskins open up wider individual prosecutions under the FCPA for foreign employees of foreign subsidiaries who may never set foot in the US?
Vinson and Elkins’ firm page on Fry Wernick