Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Impact of 'Hoskins' Cases on the FCPA and White-Collar Law

By Elkan Abramowitz and Jonathan Sack
January 01, 2023

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 UK 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).

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Stranger to the Deed Rule Image

In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.