Former Alstom executive Lawrence Hoskins has succeeded in precluding the government from prosecuting him under a theory of FCPA liability that would “be de-linked from proof that he was an agent of a domestic concern.” Hoskins moved to dismiss the first count of the third superseding indictment against him on the basis that the government charged a legally invalid theory, namely that “he could be criminally liable for conspiracy to violate the Foreign Corrupt Practices Act . . . even if the evidence does not establish that he was subject to criminal liability as a principal.” Hoskins has argued throughout the case that he is not covered by the statute because he was not an agent of the Connecticut-based Alstom subsidiary for which he allegedly arranged overseas bribes and hence was not an agent of a domestic concern.
Judge Janet Bond Arterton has now agreed with Hoskins, in part. Judge Arterton examined the text and structure of the FCPA, as well as the legislative history of the Act, and concluded that non-resident foreign nationals who are not agents of a domestic concern and do not commit acts while present in the United States cannot be found liable for violating the statute through a theory of accomplice liability. So, for example, the government cannot argue that Hoskins “could be liable for conspiracy even if he is not proved to [be] an agent of a domestic concern.” Since the government did allege agency in the third superseding indictment before arguing that it did not actually need to prove the relationship, Judge Arterton did not dismiss the count in its entirety. Instead, the count survives but the government’s more expansive interpretation was rejected.
Our prior reporting on the case can be read here.