If I ever update my 2009 article “The Facade of FCPA Enforcement” there is going to be special mention of the facts and circumstances discussed in this post.
Over the last couple of years, the U.S. government has secured approximately $1.7 billion in net Foreign Corrupt Practices Act settlement amounts in related FCPA enforcement actions against telecommunications companies VimpelCom, Telia, and most recently MTS. The enforcement actions have largely been based on the theory that Gulnara Karimova is a “foreign official” under the FCPA’s anti-bribery provisions and have not been subjected to any meaningful judicial scrutiny.
Interesting then, that in this recent Swedish court decision (English transaction) concerning the 2017 prosecution of former Telia executives Tero Kivisaari, Olli Tuohimaa and Lars Nyberg the court acquitted the defendants because Karimova was not a “public official” under the relevant law.
In the decision, the court also cared little that Telia resolved an FCPA enforcement action based on this enforcement theory because – in the words of the court – there were “strong commercial reasons” for Telia to do this and that therefore the FCPA resolution “is without probative value or impact in this case.”