FCPA – RULINGS IN 2 RECENT CASES ON LIABILITY FOR INDIVIDUAL EMAILS AND CONTROL OF AN AGENT BY A PRINCIPAL

A post on the blog of the New York University School of Law reported on 2 recent FCPA cases which, depending on decisions of higher courts, could impact the DOJ’s FCPA charging strategies going forward.

In United States v. Coburn, the government prevailed in its interpretation of the proper “unit of prosecution” – a district court ruled that individual emails sent in furtherance of the same foreign bribery scheme are separate FCPA violations, with each email forming the basis for a separate “unit of prosecution.  The post says that this ruling may give the DoJ and SEC increased leverage in settlement negotiations involving individuals as well as companies.  In addition, it says, the ruling could mean that 2 bribery schemes involving similar conduct could potentially result in significantly different charges depending on the number of emails or phone calls made to or from the US.

The post also mentioned the case involving British citizen, Lawrence Hoskins, where a district court acquitted Hoskins on all FCPA charges, ruling that the government failed to present sufficient evidence to establish an agency relationship.  He was nevertheless convicted on money laundering charges.  The post says that this ruling further limits the ability on the DoJ to pursue foreign nationals who are not employees of issuers or domestic concerns, unless the government’s appeal succeed at a higher court.

https://wp.nyu.edu/compliance_enforcement/2020/03/09/fcpa-litigation-update-doj-theories-on-unit-of-prosecution-and-agency-tested-to-mixed-results/

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Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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