Flawed Esquenazi Decision Continues To Impact FCPA Enforcement
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.
The Flawed Jury Instruction In The Hobson Matter
As highlighted here, last week Charles Hunter Hobson (who served in a variety of roles at Corsa Coal from 2013 to 2018) was found guilty by a jury for various Foreign Corrupt Practices Act and related offenses in connection with an Egyptian bribery scheme.
As stated by the DOJ, the bribery scheme involved “Al Nasr Company for Coke and Chemicals (Al Nasr), which was then a state-owned and state-controlled chemical manufacturing company in Egypt.”
The issue of whether Al Nasr was an “instrumentality” of the Egyptian government such that employees of Al Nasr could be “foreign officials” was the focus of a specific jury instruction.
The jury instruction stated:
Bribery And Basketball
My two interests, bribery and basketball (I am a Varsity head coach in Wisconsin and run my own club program), intersect in this recent indictment charging “26 individuals in connection with an alleged bribery and point-shaving scheme to fix NCAA Division I men’s basketball games and Chinese Basketball Association games.” (See here for the DOJ release).
This post focuses on the allegations concerning the Chinese Basketball Association (CBA).
As highlighted in prior posts here and here, the 2016 SEC FCPA enforcement action against Las Vegas Sands as well as the 2017 DOJ FCPA enforcement action against Las Vegas Sands involved, in part, the CBA.
The “Foreign Officials” Of 2025
A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2025?
This post highlights the alleged “foreign officials” from 2025 corporate FCPA enforcement actions.
As is apparent from the descriptions below, in certain instances the enforcement agencies describe the “foreign official” with reasonable specificity. In other instances there is less specificity as to the alleged “foreign officials.”
Looking Back At The Senate’s FCPA Hearing
Fifteen years ago this month, the Senate held a hearing titled “Examining Enforcement of the Foreign Corrupt Practices Act.”
(See here for the full hearing transcript, here for the video).
It was the first congressional hearing on the FCPA during its new era of enforcement (to be followed by a June 2011 FCPA hearing in the House) and the first FCPA hearing in Congress since the FCPA was amended in 1998.
In opening the hearing, Senator Arlen Specter (who passed away in 2012) noted that “oversight is a major function of Congress,” but that Congress does “not do very much of it.”