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Judge Finds The Term Instrumentality “Unclear” And Narrowly Construes “Foreign Official” Element Contrary To The DOJ’s Position

Judicial Decision

There is little substantive Foreign Corrupt Practices Act case law, even fewer judicial decisions of precedent. Nevertheless, in the aftermath of FCPA enforcement actions or merely FCPA scrutiny, plaintiffs counsel (no doubt representing shareholders on a contingent fee basis) frequently file securities fraud class actions hoping some get past the motion to dismiss stage.

In deciding motions to dismiss, federal trial court judges occasionally directly comment upon FCPA issues and this post highlights a recent example in a matter involving Rio Tinto. As discussed below, a federal court judge found the term “instrumentality” in the FCPA’s “foreign official” definition “unclear” and otherwise narrowly construed the term in a way contrary to the DOJ’s current position.

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Friday Roundup

Roundup

Scrutiny alert, coincidence or FCPA-related, ripple dismissed, and more shallow commentary, and ISO 37001 laughable.  It’s all here in the Friday roundup.

Scrutiny Alert

As highlighted in this previous post, in late 2013/early 2014 United Technologies Corp. (UTC) disclosed FCPA scrutiny concerning a non-employee sales representative retained in China. Recently, the company disclosed: “On March 7, 2018, the DOJ notified UTC that it had decided to close its investigation of this matter. Based on our ongoing discussions with the SEC staff to resolve this matter, UTC recorded a charge of approximately $11 million in the second quarter of 2018.”

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Friday Roundup

Roundup

Scrutiny alerts and updates, quotable, and for the reading stack. It’s all here in the Friday roundup.

Scrutiny Alerts and Updates

As highlighted in this recent post, Glencore plc, an Anglo–Swiss mining company with headquarters in Switzerland and ADRs traded on a U.S. exchange recently announced that it received a subpoena from the DOJ “to produce documents and other records with respect to compliance with the Foreign Corrupt Practices Act and United States money laundering statutes.  The requested documents relate to the Glencore Group’s business in Nigeria, the Democratic Republic of Congo and Venezuela from 2007 to present.”

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Court Concludes That Plaintiffs Counsel’s Reference To Prior FCPA Settlement In Civil Case Provides Grounds For A New Trial

You be the Judge

Once the ink is dry on a Foreign Corrupt Practices Act settlement, most people forget about it. However, it does not disappear and may be resurrected by opportunistic parties including in civil litigation.

Such is the circumstance in this post which discusses a recent 5th Circuit decision in which plaintiffs’ counsel referenced a 2011 FCPA enforcement action against Johnson & Johnson and a related entity. (See here for the prior post).

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The Panama Papers Origins Of The Parker FCPA Enforcement Action

PanamaPapers

This recent post highlighted the DOJ’s Foreign Corrupt Practices Act enforcement action against Lawrence Parker in connection with a telecommunications bribery scheme in Aruba in which 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 and alleged bribe recepient) was a “foreign official.”

This post highlights that the likely origin of the FCPA enforcement action against Parker was this March 2017 civil complaint filed in U.S. court by SETAR against Koolman, Parker and several other entities and individuals and how the civil complaint originated with the so-called Panama Papers.

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