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Second Circuit Rejects DOJ’s Use of Conspiracy and Accomplice Liability to Prosecute Foreign Nationals for FCPA Violations

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For years, the U.S. Department of Justice (DOJ) has taken the position that theories of conspiracy and aiding and abetting allow it to prosecute foreign nationals for Foreign Corrupt Practices Act (FCPA) violations even if those individuals otherwise would not be subject to liability under the FCPA. Last week, in a rare federal court of appeals decision interpreting the FCPA, the U.S. Court of Appeals for the Second Circuit rejected that expansive view of the FCPA’s jurisdiction, holding that an individual cannot be guilty as a co-conspirator or accomplice if he or she is incapable of committing the crime as a principal.

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