- FCPA Professor - http://fcpaprofessor.com -

Supreme Court Declines To Hear “Foreign Official” Challenge

As highlighted in previous posts (here [1], here [2] and here [3]), the defendants in U.S. v. Esquenazi (see here [4] for the May 2014 11th Circuit decision) petitioned the Supreme Court to hear the case – principally on the “foreign official” issue.  As previously noted, the cert petition was believed to be the first substantive FCPA cert petition in FCPA history and was supported by amicus briefs, including my own.

This morning, the Supreme Court, which decides its own docket, released this [5] Orders List declining to hear the “foreign official” challenge in U.S. v. Esquenazi.

Cert denial in the case means that the 11th Circuit decision stands as a final decision.  Cert denial does not mean that the Supreme Court agreed or disagreed with the 11th Circuit decision.

As noted in previous posts, the Supreme Court has never heard an FCPA case.

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The below statement may be attributed to Professor Koehler.

“The reasoning of the Supreme Court in declining to hear the petition is not known, but is likely due to the absence of a circuit split on the “foreign official” issue.  This absence is largely a result of alternative resolution vehicles used by the DOJ (and SEC) as well as other discretionary decisions by the enforcement agencies. So long as these dynamics continue, Supreme Court review of the key elements of a top-priority federal criminal statute of significant importance to all businesses and individuals engaged in international commerce is unlikely.”

Counsel for Esquenazi (Markus Funk and Michael Sink – both of Perkins Coie) offered the following statement.

“Statistically speaking, having the Supreme Court hear Mr. Esquenazi’s case was of course a long-shot.  But, as the amicus petitions highlighted, the confusion the appellate court’s ruling added to the ongoing muddle of what qualifies as an ‘instrumentality’ of a foreign government provided some hope that the Court might weigh in on this issue of great concern to the global business community.  That the Court decided to pass on the opportunity is disappointing.”