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Business Crimes BulletinColumns & DepartmentsLitigationWhite Collar Crime

In the Courts

By Colleen Snow
October 01, 2018

Second Circuit Issues Ruling Against DOJ in United States v. Hoskins Appeal

In August, the U.S. Department of Justice (DOJ) lost its appeal in United States v. Hoskins, No. 16-1010, — F.3d —-, 2018 WL 4038192 (2d Cir. Aug. 24, 2018). According to the United States Court of Appeals for the Second Circuit, the case turned on the extraterritorial jurisdiction of the Foreign Corrupt Practices Act (FCPA) and whether “a foreign national who never set foot in the United States or worked for an American company during the alleged scheme, may be held liable, under a conspiracy or complicity theory, for violating FCPA provisions targeting American persons and companies and their agents, officers, directors, employees, and shareholders, and persons physically present within the United States.” The Second Circuit continued: “In other words, can a person be guilty as an accomplice or a co-conspirator for an FCPA crime that he or she is incapable of committing as a principal?”

Officers, directors, employees, and shareholders of foreign companies are subject to the FCPA if they: are U.S. citizens, nationals, or residents; commit any act in furtherance of an FCPA while in the United States or by using the facilities of interstate commerce; or engage in conduct that violates the FCPA while acting as an agent of an entity or individual covered by the FCPA. Historically, the DOJ and U.S. Securities and Exchange Commission have pursued limited United States touch points as the jurisdictional basis for FCPA enforcement, including, for example, emailing, texting, and virtual participation in meetings from within the United States.

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