The Curious Case of Lawrence Hoskins: Evaluating the Scope of Agency Under the Anti-Bribery Provisions of the FCPA

By Christian R. Martinez

The Foreign Corrupt Practices Act (FCPA) explicitly defines the categories of entities subject to its provisions. One such category refers to any “agent of a domestic concern.” But what exactly is an agent of a domestic concern? In United States v. Hoskins, the Second Circuit decidedly refused to answer that question. This Note argues that, in the context of cross-border bribery, an agent of a domestic concern has a specific definition: a local third-party contracted by a non-local supplier to serve as a representative and to facilitate the movement of bribe payments between that supplier (the briber) and a local consumer (the bribee).

In making this argument, this Note underscores the significance of the Organisation for the Economic Co-operation and Development’s (OECD) Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) and its effect on FCPA enforcement. Part II provides background information to the FCPA and examines the Second Circuit’s decision in United States v. Hoskins. Part III explores the importance of the OECD Anti-Bribery Convention and juxtaposes this Note’s proposed definition of an agent of a domestic concern with traditional principles of agency. Part IV applies this Note’s proposed definition of an agent of a domestic concern to the facts of United States v. Hoskins and explains why courts should adopt this definition as well.

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