Second Circuit Limits FCPA’s Extraterritorial Reach Over Non-U.S. Persons in Conspiracy and Aiding and Abetting Cases
August 30, 2018
The United States Court of Appeals for the Second Circuit dealt a blow to the U.S. government’s extraterritorial enforcement power on Friday, August 24, 2018, in prosecuting alleged violations of the Foreign Corrupt Practices Act (“FCPA”). The Second Circuit rejected the U.S. Department of Justice's (“DOJ”) position that it can prosecute a non-U.S. person for conspiracy to violate, or aiding and abetting a violation of, the FCPA, even when the non-U.S. person did not engage in conduct that constitutes a direct violation of the statute. The Court ruled that conspiracy or aiding and abetting FCPA liability for non-U.S. persons is limited to circumstances where it can be shown that such persons acted while physically present in the United States or as an agent of a “domestic concern.”
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