Second Circuit Affirms Narrow Interpretation of Agent Liability Under FCPA

In the latest ruling in a long-running FCPA case, the government suffered another setback with the Second Circuit once again affirming a district court’s post-jury decision gutting DOJ’s theory of liability as against a foreign national.  This decision will make it more challenging for DOJ to bring FCPA charges against certain individual targets.

By way of background, back in 2013, DOJ charged Lawrence Hoskins, a UK citizen who was employed by a UK subsidiary of a French parent company (“the Company”), with violating the FCPA in connection with his involvement a foreign bribery scheme carried out by the Company’s U.S. subsidiaries. In 2014, the Company pleaded guilty and its U.S. subsidiaries entered into deferred prosecution agreements.    Although Hoskins did not clearly fit into any of the categories of persons listed in the statute—officers, directors, employees, and agents of a U.S. company subject to the FCPA—DOJ alleged that he was nevertheless liable under the FCPA as a co-conspirator with the U.S. subsidiaries.  Hoskins challenged that theory and the district court agreed, ruling that a non-resident foreign national cannot be held criminally liable for conspiracy to violate the FCPA unless that person is an agent of such a U.S. company or “domestic concern.”  DOJ filed an interlocutory appeal and the Second Circuit affirmed and remanded (“Hoskins I”).

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