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The “Foreign Officials” Of 2019

foreign official2

A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2019?

This post highlights the alleged “foreign officials” from 2019 corporate DOJ and SEC FCPA enforcement actions.

There were 14 core FCPA enforcement actions in 2019. Of the 14 actions, 8 (57%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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Petroecuador Faces Uphill Climb In Seeking “Victim” Status

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In recent years, several entities employing alleged “foreign officials” who receive bribe payments from individuals prosecuted for Foreign Corrupt Practices Act offenses have sought “victim” status under the Mandatory Victims Restitution Act.

(See here for more on the unsuccessful attempt by Instituto Constarricense de Electricidad of Costa Rica in connection with the Alcatel-Lucent FCPA enforcement action; see here for more on the unsuccessful attempt by a subsidiary of Petroleos de Venezuela, S.A. in connection with individual FCPA enforcement actions involving the entity).

In the latest attempt, Petroecuador is seeking “victim” status in connection with the FCPA enforcement action against Frank Chatburn (see here for more on the underlying enforcement action).

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DOJ Announces Guilty Pleas By Former Unaoil Executives

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Yesterday, the DOJ announced that Cyrus Ahsani and Saman Ahsani (the former CEO and Chief Operations Officer of Monaco-based Unaoil) pleaded guilty in March 2019 to one count of conspiracy to violate the FCPA for their roles in a scheme to corruptly facilitate millions of dollars in bribe payments to officials in multiple countries. The DOJ also announced that Steven Hunter (a former business development manager at Unaoil) pleaded guilty in August 2018 to one count of conspiracy to violate the FCPA.

Prior Foreign Corrupt Practices Act enforcement actions against Rolls-Royce and SBM Offshore (see here and here) involved, in whole or in part, Unaoil and the Ahsani information refers to approximately 25 other companies including approximately ten U.S. based issuers. Thus, it is likely that additional FCPA enforcement actions involving, in whole or in part, Unaoil will be forthcoming.

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Canadian Court Finds That Bribery Is A Specific Intent Offense And That Government Failed To Prove That Defendant Knew That Bribe Recipient Was A “Foreign Public Official”

Judicial Decision

This 2014 post highlighted Canadian charges against Robert Barra and Shailesh Govindia (individuals previously associated with Cryptometrics) for bribing Indian officials including those associated with Air India.

As highlighted in the below post, a Canadian court recently concluded that violations under Canada’s FCPA-like law – the Corruption of Foreign Public Officials Act (CFPOA) – are a specific intent offense and that Barra did not know the individual he allegedly bribed was a “foreign public official.”

As further highlighted below, the Canadian court’s specific intent ruling conflicts with certain FCPA jurisprudence while the Canadian court’s ruling regarding knowledge of the status of a “foreign public official” ruling is consistent with certain U.S. jurisprudence – namely U.S. v. Carson – in which the court issued a “knowledge of status of foreign official” jury instruction prior to trial. (See here).

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