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Supreme Court To Address The Meaning Of “Official Action”

SC

The core of the FCPA’s anti-bribery provisions prohibit the direct or indirect payment or offering of money or anything of value to a “foreign official” for purposes of: (A) (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or (B) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality in order to assist the payor in obtaining or retaining business for or with, or directing business to, any person. (emphasis added).

While not a Foreign Corrupt Practices Act case, in a related development the U.S. Supreme Court recently agreed to hear former Virginia Governor Robert McDonnell’s criminal appeal.

The Supreme Court agreed to hear the following question presented as stated in the petition.

“The question presented is whether ‘official action’ is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed.”

As stated elsewhere in the petition:

“[McDonnell] was convicted on federal corruption charges based on the theory that he accepted otherwise-lawful gifts and loans in exchange for taking five supposedly “official acts.” Yet those five acts—as alleged in the indictment, argued to the jury, and relied on by the courts below—were limited to routine political courtesies: arranging meetings, asking questions, and attending events. There is no dispute that Gov. McDonnell never exercised any governmental power on behalf of his benefactor, promised to do so, or pressured others to do so.

[…]

The courts below nonetheless reasoned that arranging a meeting to discuss a policy issue, or inquiring about it, is itself “official” action “on” that issue—even if the official never directs any substantive decision.

[…]

This is the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision. Officials routinely arrange meetings for donors, take their calls, and politely listen to their ideas. By affirming the convictions and endorsing the instructions below, the Fourth Circuit construed “official action” so broadly that it made these commonplace actions federal felonies whenever a jury infers a link to the donor’s contributions.”

In recent years the Supreme Court has issued several opinions in non-FCPA cases, yet in those opinions addressed issues that touch upon FCPA enforcement. (See here for discussion of McCutcheon v. FEC and Daimler A.G. v. Bauman. See here for discussion of SEC v. Gabelli and Kiobel v. Royal Dutch Shell Petroleum).

Thus, the McDonnell case is one to keep an eye on.

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