Interesting Issues To Ponder
Several notable Foreign Corrupt Practices Act enforcement actions have involved conduct in Haiti including U.S. v. Kay and U.S. v. Esquenazi.
The Esquenazi enforcement action concerned the telecommunications sector in Haiti.
Reading the news with “FCPA goggles” on is – for me – an occupational hazard of sorts.
So it was with a recent Wall Street Journal article titled “Amid Haiti’s Mayhem, Phones Keep Working.”
Oztemel Motion To Dismiss Denied
In February 2023, the DOJ announced that Glenn Oztemel (previously employed by Freepoint Commodities LLC) and Eduardo Innecco (an agent for the company) were charged with FCPA and related offenses for an alleged Brazil bribery scheme. (See here for the prior post).
In summary fashion, the indictment alleged: “Between in or about 2010 and continuing until in or about 2018, Glenn Oztemel and Eduardo Innecco, together and with others, agreed to pay, and did pay, bribes to foreign officials at Brazil’s state-owned and state-controlled oil and gas company, Petroleo Brasileiro S.A. – Petro bras (“Petrobras”), on behalf of Trading Company #1 and Trading Company #2. In exchange for the bribes, foreign officials at Petrobras, including Rodrigo Berkowitz (“Berkowitz”), who has been charged separately, provided Oztemel, Innecco and others with confidential information related to Petrobras’s business. The inside information and other improper assistance Berkowitz provided to Oztemel, Innecco and others gave Trading Company #1 and Trading Company #2 improper business advantages in trades with Petrobras.”
Recently, Judge Kari Dooley (D. Conn) denied Oztemel’s motion to dismiss.
“Foreign Official” Rewind – Part 2
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:
“Foreign Official” 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).
In The Aguilar Trial, Judge Rules That Employees Of A Wholly-Owned Affiliate Of PEMEX Are Not “Public Servants”
Last month, a rare Foreign Corrupt Practices Act trial began in New York.
The case is U.S. v. Javier Aguilar. (See here for the prior post detailing the charges and here for an article providing an overview of the trial).
Last week, with the trial nearing its conclusion, the judge in the case (Eric Vitaliano – E.D.N.Y.) issued a meaningful decision concluding that employees of Pemex Procurement International Inc. (PPI) – a wholly-owned affiliate of PEMEX – are not “public servants” for purposes of the relevant Mexican law.
In doing so, Judge Vitaliano rejected the DOJ’s position that an entity is state-owned by virtue of its parent corporation being state-owned and stated that the “government does not easily give up the ghosts” and was “grasp[ing] at the straw.”