Second Circuit Revisits The Extraterritorial Reach of the FCPA -
The Foreign Corrupt Practices Act (“FCPA”) was designed to make it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. The FCPA’s anti-bribery provisions apply to all U.S. persons (also known under the statute as “domestic concerns”), certain foreign issuers of securities (“issuers”), and foreign firms and persons who cause, directly or through agents, an act in furtherance of such corrupt payments to take place within the United States. A recent decision of the United States Court of Appeals for the Second Circuit (“Second Circuit”) narrowed the territorial reach of the statute for non-resident foreign nationals charged with conspiracy to violate the FCPA, thus dealing a blow to the U.S. Department of Justice’s (“DOJ”) expansive interpretation of the statute. See Hoskings v. United States, No. 16-1010-cr, 2018 WL 4038192 (2d Cir. Aug. 24, 2018).
The case centered around Lawrence Hoskings, a British national and former Alstom UK executive based in Paris, who was accused of conspiring with Alstom S.A. and a U.S. subsidiary to bribe Indonesian officials in exchange for securing a $118 million contract with the Indonesian government. Although Hoskings never worked for the U.S. entity, the DOJ charged him with (1) conspiring with the U.S. subsidiary to violate the FCPA and with aiding and abetting those violations, and (2) conspiring to violate the FCPA and aiding and abetting such violations while acting as an agent of the U.S. subsidiary.
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