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Second Circuit Issues Rare Decision Interpreting the FCPA

By Jonathan S. Kolodner, Lisa Vicens, Jennifer Kennedy Park & Olivia H. Renensland on August 29, 2018
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On August 24, 2018, the Second Circuit in United States v. Hoskins issued a decision limiting the FCPA’s reach, holding that foreign nationals who cannot be convicted as principals under the FCPA also cannot be held liable for conspiring to violate or aiding and abetting a violation of the statute. The decision, written by Judge Pooler (joined by Chief Judge Katzmann and Judge Lynch, who also wrote a concurring opinion), concluded that, due to affirmative legislative policy and extraterritoriality concerns, the FCPA’s reach cannot be extended via conspiracy or complicity liability to implicate individuals who cannot violate the FCPA as principals. Although the decision limits the government’s ability to prosecute foreign nationals for conspiring to commit or aiding and abetting a violation of the FCPA, practically speaking, the decision will apply only to a small class of foreign nationals and entities – those who engaged in a bribery scheme in which there is otherwise jurisdiction under the FCPA, but who are not themselves subject to the FCPA’s jurisdiction. That said, the ruling is significant as one of the few cases limiting the FCPA’s jurisdiction due to the statute’s unique, extraterritorial nature, which may encourage charged defendants in other cases to challenge the DOJ’s broad interpretation of its jurisdiction.

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Photo of Jonathan S. Kolodner Jonathan S. Kolodner

Jonathan S. Kolodner’s practice focuses on white-collar criminal enforcement and regulatory matters as well as complex commercial litigation.

Read more about Jonathan S. KolodnerEmail
Photo of Lisa Vicens Lisa Vicens

Lisa Vicens regularly represents public companies and their boards in internal and governmental investigations, in particular with respect to anti-bribery and corruption and other cross-border issues.

Read more about Lisa VicensEmail
Photo of Jennifer Kennedy Park Jennifer Kennedy Park

Jennifer Kennedy Park’s practice focuses on white-collar defense, enforcement actions, crisis management, and complex disputes.

Read more about Jennifer Kennedy ParkEmail
  • Posted in:
    Criminal
  • Blog:
    Cleary Enforcement Watch
  • Organization:
    Cleary Gottlieb Steen & Hamilton LLP
  • Article: View Original Source

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