In the Courts

Officers, directors, employees, and shareholders of foreign companies are subject to the FCPA if they: are U.S. citizens, nationals, or residents; commit any act in furtherance of an FCPA while in the United States or by using the facilities of interstate commerce; or engage in conduct that violates the FCPA while acting as an agent of an entity or individual covered by the FCPA. Historically, the DOJ and U.S. Securities and Exchange Commission have pursued limited United States touch points as the jurisdictional basis for FCPA enforcement, including, for example, emailing, texting, and virtual participation in meetings from within the United States.

Hoskins, a citizen of the United Kingdom, was originally charged in 2013 for FCPA (and money laundering) violations in connection with hiring third parties to make illicit payments to government officials in Indonesia in order to secure a $118 million contract on behalf of Alstom. In addition to the agency theory of liability, the government alleged that, because Hoskins had the authority to approve and authorize corrupt payments — and did so by emailing and calling Alstom U.S. co-conspirators located in the United States — he could be guilty as a foreign national that aided and abetted FCPA violations. Based in France, Hoskins had not, however, physically traveled to the United States to facilitate the bribery scheme. Two years later, in 2015, the United States District Court in Connecticut held that Hoskins could not be prosecuted under the DOJ's jurisdictional theory and dismissed the FCPA charge against him. In affirming the lower court's ruling, the Second Circuit held that the government could proceed only by demonstrating that Hoskins acted as an agent of a “domestic concern” or was physically present in the United States. Accordingly, the Second Circuit, concluded that the text, structure, and legislative history of the FCPA meant that Hoskins, a non-United States resident, had not acted in furtherance of the bribery scheme while in the country.