- The Second Circuit held that Hoskins, a foreign national, had not acted as an “agent for a domestic concern” and therefore fell outside of the jurisdictional reach of the Foreign Corrupt Practices Act (“FCPA”).
- The ruling will make it more difficult for the Government to prosecute individuals located outside the United States under the FCPA.
- Multinational companies should clearly and specifically define the scope of responsibilities and line of reporting for foreign executives located abroad whose roles relate to the operations of U.S. affiliates to clarify whether they are acting as an agent of said affiliates.
On August 12, 2022, the U.S. Court of Appeals for the Second Circuit  in a 2-1 decision  affirmed the decision of the U.S. District Court for the District of Connecticut to partly overturn the conviction of Lawrence Hoskins. Hoskins, a former executive with the French power and transportation company Alstom S.A. (“Alstom”), was convicted for his alleged involvement in a scheme to bribe Indonesian government officials to secure a $118 million contract for Alstom’s U.S. subsidiary Alstom Power, Inc. (“Alstom-U.S.”). In 2019, a jury convicted Hoskins of seven FCPA violations as well as four money laundering charges, for which he served 15 months in prison.
In February 2020, the District Court granted Hoskins’ motion for acquittal as to the FCPA counts, but denied the motion as to various money laundering charges. In its recent decision, the Second Circuit ruled that Hoskins had not acted as an agent for Alstom-U.S., rendering Hoskins outside the category of persons covered by the FCPA.
Unless the government obtains en banc review at the Court of Appeals, or petitions to the U.S. Supreme Court, this ruling puts an end to Hoskins’ decade-long prosecution, which was marked by important decisions regarding the jurisdictional reach of the FCPA over non-U.S. persons.
Connecticut-based Alstom-U.S. was home to Alstom’s utility boiler business and was closely involved in Alstom’s bidding on the power contract. The Government charged Alstom-U.S. with paying the bribes at issue through two consultants, and it presented evidence that Hoskins reviewed and approved aspects of the consulting agreements and contributed to the selection of the consultants.
A United Kingdom national, Hoskins was employed during the relevant time by Alstom UK Limited, a British subsidiary of Alstom, but worked mainly for Alstom Resource Management SA, a French subsidiary of the company, in Paris. Hoskins never set foot in the U.S. while the bribery scheme was ongoing, did not work for a U.S. entity, and only communicated with U.S.-based conspirators by phone and email from France. The Government initially charged Hoskins on three independent theories of liability, alleging that Hoskins:
- Conspired with Alstom-U.S., its employees and foreign consultants to violate the FCPA;
- Aided and abetted the FCPA violations committed by Alstom-U.S., its employees and foreign consultants; and
- Acted as an “agent” of Alstom-U.S. in conspiring with others to violate the FCPA and committing substantive violations of the Act.
As we previously reported here, Hoskins’ case was first brought to the Second Circuit in August 2018, where the Second Circuit rejected the Government’s first and second theories of liability and held that Hoskins could not be charged with conspiring to violate the FCPA or aiding and abetting violations of it. According to the Second Circuit, those theories, when applied to most foreign (non-United States) persons, reached beyond the three specific categories of persons over whom the FCPA expressly claims jurisdiction, including:
- U.S. and foreign issuers of securities listed on U.S. stock exchanges, or their officers, directors, employees, or agents;
- American companies and U.S. persons (“domestic concerns”); and
- Foreign persons or businesses acting in the U.S. in furtherance of a bribery scheme.
However, the Second Circuit allowed the Government to prosecute Hoskins based on its third theory of liability, i.e. by showing that Hoskins acted as an “agent” of a domestic concern in carrying out the bribery scheme.
Agency: A Question of Control
Following his jury trial, Hoskins moved for acquittal on the basis that the Government failed to prove that he was an agent of Alstom-U.S. Hoskins’ argument was based on the fact that Alstom-U.S. could not fire him or control his day-to-day work and instead that Alstom-U.S. needed Hoskins’ approval for certain activities. As we previously discussed in greater detail here, the Connecticut District Court granted Hoskins’ motion for acquittal on the FCPA counts, finding that the Government had not shown that Hoskins acted subject to Alstom-U.S.’s control such that Hoskins was an agent of Alstom-U.S.
In reviewing the case de novo, the Second Circuit agreed, reasoning that:
- There was no explicit or implicit agency or employee relationship between Hoskins and Alstom-U.S. such that the elements of an agency relationship were proven beyond a reasonable doubt.
- Evidence that Alstom-U.S. actually controlled Hoskins’ actions was “[c]onspicuously missing.”
- Hoskins and his Alstom-U.S. counterparts “operated under separate, parallel employment structures.”
- The head of boiler sales for Alstom-U.S. “did not hire Hoskins, lacked the ability to fire Hoskins, and lacked any say in Hoskins’ compensation.”
The Second Circuit found that the lack of control over Hoskins was fundamental to the question of whether Hoskins was an agent.
While there was some evidence that Hoskins collaborated with and supported Alstom-U.S., the Second Circuit found that such collaboration and support did not mean he was under Alstom-U.S. control within the meaning of the FCPA. According to the court, identifying consultants to become agents of Alstom-U.S. did not make Hoskins himself an agent of Alstom-U.S., nor did reviewing contracts to make sure they complied with Alstom-U.S. standards. Having found that there was no agency or employee relationship between Hoskins and Alstom-U.S., the Second Circuit affirmed the acquittal of the FCPA counts.
Judge Lohier’s Dissent: Ruling Risks FCPA Gamesmanship
Judge Raymond Lohier issued a dissenting opinion that adopted a broader definition of agency than the majority, concluding that the Government did not need to show that Alstom-U.S. could cut Hoskins out of the scheme entirely, but rather, that it could terminate his involvement and revoke his authority. Judge Lohier found that the Government made this showing.
Judge Lohier also expressed concern that the ruling will incentivize U.S. companies to purposely limit their control over employees of foreign affiliates in order to insulate them from bribery charges, and would contribute to the perception that U.S. courts are interpreting the FCPA so narrowly as to put the United States in violation of the Organization for Economic Cooperation and Development (OECD) Convention on Combatting Bribery of Foreign Public Officials in International Business Transaction – a result that would be inconsistent with express Congressional intent when adopting amendments to the FCPA in 1998 to implement the OECD Convention in the U.S. Judge Lohier warned that Congress or the Supreme Court would now have to weigh in to “correct our course.”
The Second Circuit’s decision underscores the importance for multinational companies to clearly and specifically define the scope of responsibilities and reporting lines of any foreign executives who are located abroad and whose roles touch upon the operations of U.S. affiliates, and to ensure that those responsibilities and reporting lines are observed in practice. This decision also underscores the fact-specific nature of the FCPA analysis, showing that even facts that may not seem important at the time may have a large impact on the analysis, and small differences may tip the scales one way or the other. However, the ultimate determination that a particular individual is not an “agent” will not insulate foreign individuals who facilitate bribery from U.S. prosecution, as other criminal laws, such as money laundering (used with Hoskins), may also be available to prosecutors depending on the facts of each case.
 United States v. Hoskins, Nos. 20-842, 20-1061, 20-1084, 2022 U.S. App. LEXIS 22436 (2d Cir. Aug. 12, 2022).
 Judge Lohier concurred in part and dissented in part. The concurrence was with regard to the speedy trial analysis and jury instructions, confirming that these procedures were correct. His dissent focuses on the FCPA issue, where he states that the standard of review for post-trial motions is highly deferential to a jury’s verdict and that he would instead reverse the District Court’s acquittal and its conditional grant of Hoskins’ Rule 33 motion for a new trial.
 Hoskins, 2022 U.S. App. LEXIS 22436 at *38.
 Alstom no longer owns this business unit in Connecticut – it was purchased by General Electric in 2015.
 United States v. Hoskins, 902 F.3d 69 (2d Cir. 2018).
 Hoskins, 2020 U.S. Dist. LEXIS 32663 (D. Conn.).
 Hoskins, 2022 U.S. App. LEXIS 22436, at *18.
 Id. at *18-19.