ASSIGNMENT
1.A Federal grand jury handed down an indictment naming as a defendant Nippon Paper Industries Co., Ltd. (NPI), a Japanese manufacturer of facsimile paper. The indictment alleged that five years earlier, NPI and certain unnamed coconspirators held a number of meetings in Japan, which culminated in an agreement to fix the price of thermal fax paper throughout North America. NPI and other manufacturers who were involved in the scheme purportedly accomplished their objective by selling the paper in Japan to unaffiliated trading houses on the condition that the latter charge specified (inflated) prices for the paper when they resold it in North America. The trading houses then shipped and sold the paper to their subsidiaries in the United States, which in turn sold it to U.S. consumers at inflated prices. The indictment further states that to ensure the success of the venture, NPI monitored the paper trail and confirmed that the prices charged to end users were those that it had arranged. The indictment maintains that these activities had a substantial adverse effect on commerce in the United States and unreasonably restrained trade in violation of the Sherman Act. Does the Sherman Act apply to this conduct? Explain.
2. American Rice, Inc. (“ARI”), is a Houston-based company that exports rice to foreign countries, including Haiti. Rice Corporation of Haiti (“RCH”), a wholly owned subsidiary of ARI, was incorporated in Haiti to represent ARI’s interests and deal with third parties there. As an aspect of Haiti’s standard importation procedure, its customs officials assess duties based on the quantity and value of rice imported into the country. Haiti also requires businesses that deliver rice there to remit an advance deposit against Haitian sales taxes, based on the value of that rice, for which deposit a credit is eventually allowed on Haitian sales tax returns when filed. The United States indicted David Kay and Douglas Murphy, both officers of ARI, for violation of the Foreign Corrupt Practices Act (FCPA). The indictment detailed how Kay and Murphy allegedly orchestrated the bribing of Haitian customs officials to accept false bills of lading and other documentation that intentionally understated by one-third the quantity of rice shipped to Haiti, thereby significantly reducing ARI’s customs duties and sales taxes. The defendants argue that bribes paid to obtain favorable tax treatment are not payments made to “obtain or retain business” within the FCPA and thus are not within the scope of that statute’s proscription of foreign bribery. Does the FCPA apply to this conduct? Explain.
