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DOJ Announces Guilty Pleas By Former Unaoil Executives

unaoil

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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The “Foreign Officials” Of 2018

shadows

A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2018?

This post highlights the alleged “foreign officials” from 2018 corporate DOJ and SEC FCPA enforcement actions.

There were 17 FCPA core corporate enforcement actions in 2018. Of the 17 enforcement actions 9 (53%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs) with an additional 2 actions (12%) involving, in whole or in part, individuals associated with foreign health care systems.

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Congress Knows How To Draft Legislation That Expressly Captures SOEs

Capital Hill

Recently, H.R. 5105 titled “Better Utilization of Investments Leading to Development Act” passed the House of Representatives. The bill has little to do with the Foreign Corrupt Practices Act, however the bill expressly addresses (and defines) state-owned enterprises (SOEs) and once again demonstrates that Congress is fully capable of enacting legislative that expressly captures SOEs (something Congress failed to do in the FCPA).

As highlighted in numerous prior posts and my 2014 amicus brief urging the Supreme Court to hear the Esquenazi “foreign official” challenge, if Congress wanted to include SOE employees in the FCPA’s statutory definition of “foreign official,” it easily could have done so — when enacting the FCPA in 1977, when amending the FCPA in 1998, or on any other occasion.

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SETAR Describes Itself As A “Private Sector Business,” But The DOJ Alleges That It Is A Foreign Government “Instrumentality”

What's the Difference

As highlighted here, in last week’s Foreign  Corrupt Practices Act enforcement action against Lawrence Parker in connection with a telecommunications bribery scheme in Aruba the DOJ alleged that Servicio di Telecommunicacion di Aruba N.V. (SETAR) was an instrumentality of the Aruban government such that Egbert Yvan Ferdinand Koolman (a product manager at SETAR) was a “foreign official.”

That’s interesting because since 2003 SETAR has described itself as a “private sector business.”

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