One of the interesting things about writing about the FCPA and related issues on a daily basis for over 15 years is the frequency in which I come across content of former DOJ/SEC enforcement officials saying things in conflict with positions they articulated while at the government. (See here for a prior post).
Hui Chen was “the first-ever Compliance Counsel Expert at the United States Department of Justice, Hui was the exclusive consultant to the federal prosecutors in the Fraud Section, evaluating corporate ethics and compliance programs in areas such as anti-fraud, anti-bribery/kickback, healthcare, quality control, manipulation of financial markets, process safety, and environmental protection. She is the author of the Fraud Section’s well known “Evaluation of Corporate Compliance,” which has been widely praised by compliance practitioners and recognized by government regulators and standard setters around the world.” (See here).
During Chen’s time at the DOJ, the message from the DOJ (as it has long been before and after her tenure) was always disclose and cooperate.
In March 2026, the DOJ criminally charged David Ferrera and Marc Tilman with FCPA and related offenses in connection with an alleged bribery scheme involving an employee of Centre Hospitalier Universitaire de Reims (CHU Reims) in France. (See here for the prior post).
According to the DOJ: “CHU Reims was wholly owned and controlled by the government of France and performed a function that France treated as its own. CHU Reims was an “instrumentality” of a foreign government, and CHU Reims’s officers and employees were “foreign officials,” as those terms are used in the FCPA …”.
The prior post noted that the DOJ enforcement theory that employees (such as physicians, nurses, mid-wives, lab personnel, etc.) of certain foreign health care systems can “foreign officials” under the FCPA – and thus occupy a status akin to a President or Prime Minister – was dubious.
Silly?
Warranted?
Somewhere in between?
Who knows.
But the back and forth between the DOJ and Judge Nicholas Garaufis (E.D.N.Y.) in connection with the DOJ’s consent motion to dismiss in US v. Adani et al continues.
Earlier this week, Judge Garaufis granted the DOJ’s motion to dismiss fraud charges against certain defendants (even though he disagreed with the vast majority of the DOJ’s positions), while at the same time rejecting the DOJ’s motion to dismiss FCPA and obstruction charges against certain other defendants. (See here for the prior post).
In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).
This recent post highlighted how Judge Nicholas Garaufis (E.D.N.Y.) granted the DOJ’s motion to dismiss various non-FCPA fraud charges against certain defendants.
However, Judge Garaufis denied – for the moment – the motion to dismiss FCPA and obstruction charges against certain other defendants.
Regarding the “FCPA Charges against Non-Appearing Defendants,” Judge Garaufis wrote:
In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).
Gautam Adani (a citizen of India and founder of the Adani Group which includes numerous portfolio companies including Adani Green Energy – and Indian energy company) was charged with securities fraud conspiracy, securities fraud, and wire fraud conspiracy.
Sagar Adani (a citizen of India and Gautam Adani’s nephew and Executive Director of Adani Green’s Board of Directors) was charged with securities fraud conspiracy, securities fraud, and wire fraud conspiracy.
In 2014, the 11th Circuit released its decision in U.S. v. Esquenazi.
The case was, and remains, the only appellate court decision in Foreign Corrupt Practices Act history to substantively address the FCPA’s “foreign official” element.
In pertinent part the court stated:
“An ‘instrumentality’ under … the FCPA is an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own. Certainly, what constitutes control and what constitutes a function the government treats as its own are fact-bound questions. It would be unwise and likely impossible to exhaustively answer them in the abstract. Because we only have this case before us, we do not purport to list all of the factors that might prove relevant to deciding whether an entity is an instrumentality of a foreign government. For today, we provide a list of some factors that may be relevant to deciding the issue.
In mid-April, Judge Kenneth Hoyt (S.D. Texas) granted post-trial motions by Ramon Alexandro Rovirosa Martinez and ordered that he be released from prison. (See here).
Shortly thereafter, on May 8th, the DOJ filed a notice of appeal in the Fifth Circuit. (See here).
Earlier this summer, the DOJ requested a 30-day extension of time in which to file its opening brief stating that the “the Office of the Solicitor General has not yet determined whether or on what grounds to allow a government appeal to proceed in this case.”
The DOJ is still unsure of an actual appeal.
In the latest example of the Trump administration’s retreat from FCPA enforcement (or some still maintain), earlier today Asante Berko (a former Executive Director of Goldman Sachs International) was convicted by a jury of FCPA and related offenses in connection with a Ghana bribery scheme after a trial in the E.D. of New York.
As reported here: “after deliberating for approximately three hours, a jury of four women and eight men found Berko, 52, guilty of violating the Foreign Corrupt Practices Act, conspiracy to do the same, and money laundering conspiracy.”
The trial was believed to be just the 27th FCPA jury trial in the FCPA’s nearly 50 years and the 4th FCPA trial since September 2025.
Several posts in late June and July (see here, here, here, here) checked in on the U.S. v. Adani et al matter and the pending DOJ consent motion requesting that U.S. District Court Judge Nicholas Garaufis (E.D.N.Y.) dismiss the action.
Gautam Adani, Sagar Adani, and another defendant are not charged with FCPA offenses in connection with an alleged Indian bribery scheme (but rather securities fraud conspiracy and wire fraud conspiracy).
Five other defendants in the matter though are charged with FCPA violations (as well as other charges).
The Foreign Corrupt Practices Act is approaching the big 5-0 as the law was enacted in 1977.
2004 – hard to believe – was 22 years ago and that year saw three developments relevant to the “modern era” of FCPA enforcement.
U.S. v. Kay
Prior to the 5th Circuit’s February 2004 decision in U.S. v. Kay (359 F.3d 738), the government was 0-3 when put to its burden of proof in FCPA enforcement actions outside the context of foreign government procurement. (See here for a summary of those three actions).
Approximately 20 years ago, while in private practice, I was involved in an internal investigation involving the Chinese subsidiary of a U.S. issuer providing travel and entrainment to individuals who the DOJ/SEC considered Chinese “foreign officials.”
It culminated in the 2007 FCPA enforcement action against Lucent Technologies in which the SEC alleged that the company violated the FCPA’s books and records and internal controls provisions based on its Chinese subsidiary arranging for non-business travel for “employees of Chinese state-owned or state-controlled telecommunications enterprises, to travel to the United States and elsewhere.”
According to the SEC, “the majority of the trips were ostensibly designed to allow the Chinese foreign officials to inspect Lucent’s factories and to train the officials in using Lucent equipment” however “during many of these trips, the officials spent little or no time in the United States visiting Lucent’s facilities” but rather visited various tourist destinations.
At the time, it was one of the first “pure” FCPA travel and entertainment type of enforcement actions.
On July 17th, the DOJ announced a $10.2 million FCPA enforcement action against The Scoular Company based on alleged bribery scheme in Mexico. (See here for the prior post).
As stated in the DOJ release:
“Between 2013 and 2019, Scoular relied on multiple customs brokers to ensure that its shipments of corn and other products successfully crossed from the United States into Mexico. Under Mexican law, those shipments were subject to inspection for dirt, soil, and other impurities. To ensure that Scoular’s shipments successfully transited the border despite inspections that found such dirt, soil, and other impurities, Scoular authorized multiple third-party customs brokers to bribe Mexican officials at the border. At the direction of Scoular employees, and for Scoular’s benefit, those brokers paid bribes of approximately $2,000 per Scoular train and invoiced the bribes back to Scoular for reimbursement of reinspection fees, which Scoular paid. Scoular employees communicated about shipments and bribes via WhatsApp and other means. In total, Scoular authorized bribes of more than $400,000 and avoided fees and costs of more than $6.5 million.”
As discussed in previous posts here and here, The Scoular enforcement action was a garden variety FCPA enforcement action.