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“Foreign Official” Rewind – Part 2

Rewind

Ten years ago this week, 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.

As discussed below, the Esquenazi decision was, and remains, a flawed decision.

In pertinent part the court stated:

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“Foreign Official” Rewind

Rewind

Ten years ago this week, the 11th Circuit released its decision in U.S. v. Esquenazi. Set forth below is the post originally published on FCPA Professor on May 16, 2014 summarizing the decision.

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Numerous prior posts (see here for instance) have highlighted the historic appeal in U.S. v. Joel Esquenazi and Carlos Rodriguez.

Although there were several issues on appeal, the appeal is best known as the first time in FCPA history in which an appellate court has the opportunity to weigh in on the prominent enforcement theory that employees of alleged state-owned or state-controlled entities are “foreign officials” under the FCPA.  (The defense relied, in part, on my foreign official declaration and, as previously disclosed, I served as a pro-bono expert to the defense in this case).

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Courts Upholds FCPA Convictions Of Former ComEd Executives And Associates

Judicial Decision

As discussed in this prior post, in May 2023 a federal jury in Chicago found four former Commonwealth Edison (“ComEd”) executives and associates guilty on all counts charged, including conspiring to influence and reward the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company, in addition to multiple bribery and record falsification charges. (See here for the DOJ release).

Bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues.

However, ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the FCPA has always been a law much broader than its name suggests because of the FCPA’s books and records and internal controls provisions.

Indeed, the most serious (from a sentencing and fine perspective) criminal charges the four individuals were found guilty of were record falsification in violation of the FCPA.

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Checking In On The Murta Enforcement Action

Checkin

As highlighted in this prior post, in September 2019 the DOJ announced the unsealing of a criminal indictment against (among others) Paulo Casqueiro Murta in connection with an alleged bribery scheme involving Venezuela’s state-owned and state-controlled energy company, PDVSA. According to the DOJ, Murta (a citizen of Portugal and Switzerland) provided financial services to various co-defendants (including former employees of PDVSA) in connection with various bribery schemes and he was charged with directly violating or assisting others in violating the FCPA and money laundering laws.

This post discussed the many judicial decisions in the matter – mostly on non-FCPA procedural issues – the latest of which was the trial court dismissing with prejudice the indictment due to Speedy Trial Act violations.

The matter was back at the Fifth Circuit and recently the court issued this decision in which it affirmed the dismissal due to Speedy Trial Act violations, but reversed and remanded the dismissal with prejudice issue and ordered that a new judge be assigned to the case.

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Without Individual FCPA Defendants, There Would Be No FCPA Case Law

caselaw

Lest there be any confusion, I start this post with the basics.

The Foreign Corrupt Practices Act is a criminal (as well as civil) statute.  Those that violate the FCPA ought to be charged.  Those who are found guilty of FCPA violations are not worthy of commendation.

Nevertheless, those who put the DOJ or SEC to its burden of proof by contesting FCPA charges perform – in a way – a public service that ought to be recognized by forcing the FCPA enforcement agencies to defend its theories in court.

By recognized, I simply mean that it needs to be recognized that without FCPA individual defendants there would be no FCPA case law in the FCPA’s approximate 45 years.

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