Second Circuit Limits Reach of FCPA to Persons Present in the United States
In an important decision issued on August 24, the Second Circuit limited the reach of the Foreign Corrupt Practices Act (“FCPA”) by holding that theories of conspiracy or complicity cannot be used to charge non-U.S. citizens who do not work for an American business and whose furtherance of corrupt schemes takes place outside the United States. Judge Pooler wrote the majority decision in United States v. Hoskins, No. 16-1010, and Judge Wesley authored a concurring opinion. This decision is notable because FCPA cases are rarely litigated because the stakes are ordinarily too high for corporations to challenge the government’s theory of liability in court, and individual prosecutions are rare. Hoskins is also particularly interesting because it appears to contradict the DOJ and SEC’s own interpretation of the FCPA, as set out in the FCPA resource guide.