Hoskins I, II, III: Implications For The FCPA And White-Collar Criminal Law

• Published date: 13 September 2022
• Subject Matter: Government, Public Sector, Criminal Law, Money Laundering, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Morvillo Abramowitz Grand Iason & Anello
• Author: Mr Elkan Abramowitz and Jonathan Sack

Under the Foreign Corrupt Practices Act (FCPA), it is unlawful to make a corrupt payment to a foreign government official in order to obtain or retain business. Enacted in 1977, the law prohibits bribery by, among others, U.S. "domestic concerns," which includes U.S. companies and partnerships, and "officers, directors, employees, ... agents, ... or stockholders ... acting on behalf of a domestic concern." 15 U.S.C. '78dd-2.

The range of individuals subject to prosecution under the law has been contested in recent years as criminal and civil enforcement of the FCPA has increased. The meaning of the word "agent" has generated particular controversy. Global companies routinely engage intermediaries in dealings with foreign government officials, so questions naturally arise as to who exactly may be treated as an "agent" of a "domestic concern." If given a broad construction, the statutory language would expose a wide range of individuals who live and work abroad to possible prosecution in the United States. This would, in turn, pose important questions of extraterritoriality and fairness.

For nearly 10 years, prosecutors, defense attorneys and judges have wrestled with these issues in the prosecution of Lawrence Hoskins'an employee of a U.K. subsidiary of Alstom, S.A., a global power and transportation company (Alstom)'for bribing Indonesian officials. Hoskins was originally charged as a co-conspirator or accomplice of Alstom Power, Inc. (API), a Connecticut-based U.S. subsidiary of Alstom, but that theory of prosecution was rejected in United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018) (Hoskins I). The government then prosecuted Hoskins on an alternate theory' that he was acting as an "agent" of a "domestic concern" (API). He was tried and convicted on that theory, but the district court then granted a post-trial motion of acquittal on the FCPA charges because the record did not establish that he was, in fact, an "agent" of API. United States v. Hoskins, 3:12cr238, 2020 WL 914302 (D. Conn. Feb. 26, 2020) (Hoskins II). The U.S. Court of Appeals for the Second Circuit recently affirmed the acquittal on FCPA charges in a 2-1 decision. United States v. Hoskins, 44 F.4th 140, 2022 WL 3330357 (2d Cir. Aug. 12, 2022) (Hoskins III).

In this article, after briefly expanding on the holdings in Hoskins I, II and III, we examine the impact on three issues of importance to white-collar practitioners: first, the scope of the FCPA'in particular, how far the FCPA may be extended to include non-citizens who live and work abroad; second, the interpretation of white-collar criminal statutes'in...