On August 12, 2022, the US Court of Appeals for the Second Circuit issued another decision in a long-running criminal action that holds significant implications for the reach of the US Foreign Corrupt Practices Act (FCPA) over foreign individuals and companies. In its second opinion in a case spanning approximately nine years, the Second Circuit was asked to determine the reach of a provision of the FCPA that renders unlawful certain acts by an “agent” of “a domestic concern.” The Second Circuit held that Lawrence Hoskins, a foreign national who previously worked for a UK subsidiary of Alstom S.A., a global corporation headquartered in France, was not acting as an “agent” of a separate US subsidiary of Alstom S.A. that hired consultants to bribe Indonesian government officials. The Second Circuit’s decision in United States v. Hoskins, —F.4th—, 2022 WL 330357 (2d Cir. Aug. 12, 2022), will likely spur federal authorities to place renewed focus on gathering and assessing evidence associated with the fact-intensive inquiry required to establish agency in applicable cases. Companies and individuals facing scrutiny under an agency theory should closely evaluate the evidentiary record on agency and push back on broad-brush government arguments. The Hoskins decision also serves as a reminder to companies to consider the structure and substance of their relationships with subsidiary companies, subsidiary employees, and other third parties that may expose the company to liability when those entities and individuals are determined to be acting as agents of the company.
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