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Second Circuit Ruling Offers Ways to Mitigate FCPA Risk Through Corporate Structure
The Foreign Corrupt Practices Act (FCPA) is an unusual beast. It is used by the Department of Justice (DOJ) and the U.S. Securities and Exchange Commission to extract eye-watering sanctions from companies after years of investigation — millions on the lower end and billions on the higher. The DOJ employs the FCPA to indict defendants who live outside the United States, engage in purported misconduct outside the United States, and cause the alleged harm outside the United States. And when those defendants are employed or affiliated with U.S. companies, then those companies can be on the hook too.
Yet despite the statute's breadth and its aggressive enforcement, it has largely escaped judicial scrutiny. Individuals and companies are reluctant to test the bounds of the law and risk federal prison or crippling penalties. They cut the best deals they can get and move on. But one man, Lawrence Hoskins, has refused to fall in line and has almost single-handedly shaped recent FCPA jurisprudence, which could be a boon to corporate counsel and compliance officers.
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