On Non-Self-Executing Agreements …
As discussed in this previous post, in 2014 the Eleventh Circuit affirmed the FCPA (and related convictions) of Joel Esquenazi and Carlos Rodriguez. In doing so, the court defined the term “instrumentality” in the FCPA and concluded that a state-owned or state-controlled enterprise (SOE) could be an “instrumentality” if a two-factor control and function test were met such that SOE employees could be considered “foreign officials” under the FCPA.
The decision was flawed in several respects (see here for the prior post and see here for my Amicus Brief encouraging the Supreme Court to accept the case).
Among the flaws was that, instead of considering the relevant enacting FCPA legislative history as to the “foreign official” issue, the Court supported its conclusion with a flawed analysis of subsequent 1998 amendments to the FCPA as well as the impact of the OECD Convention.
The “Foreign Officials” Of 2021
A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2021?
This post highlights the alleged “foreign officials” from 2021 corporate DOJ and SEC FCPA enforcement actions. Compared to prior years, this year in review statistic (like many from 2021) is less than enlightening given the small number of corporate enforcement actions in 2021.
There were four core FCPA enforcement actions in 2021. Of the four actions, three (75%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).
UK Finance Addresses The Meaning Of “Public Official”
UK Finance, a trade association of the United Kingdom banking and financial services sectors, recently released this white paper titled “Anti-Bribery and Corruption Compliance – Definition of Public Officials.”
The stated purpose of the paper “is to establish practical and risk-based guidance on the definition of public officials for purposes of anti-bribery and corruption (ABC) compliance.”
The introduction states as follows:
Swedish Appellate Court Agrees, Karimova Was Not A “Public Official” (The Same Enforcement Theory That The U.S. Largely Used To Secure Approximately $1.7 Billion In FCPA Settlements)
This post is related to a prior post from March 2019 regarding the same subject.
In recent years, the U.S. government has secured approximately $1.7 billion in net Foreign Corrupt Practices Act settlement amounts in related FCPA enforcement actions against telecommunications companies VimpelCom, Telia, and most recently MTS. The enforcement actions were largely based on the theory that Gulnara Karimova (the daughter of former Uzbekistan President Islam Karimov) was a “foreign official” under the FCPA’s anti-bribery provisions. Like many FCPA enforcement theories, this theory was not subjected to any meaningful judicial scrutiny.
However, in a 2019 criminal prosecution of former Telia executives Tero Kivisaari, Olli Tuohimaa and Lars Nyberg, a Swedish trial court acquitted the defendants because Karimova was not a “public official” under the relevant law.
Earlier this year, a Swedish appellate court affirmed the acquittal and once again concluded that Karimova was not a “public official” under the relevant law.
The “Foreign Officials” Of 2020
A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2020?
This post highlights the alleged “foreign officials” from 2020 corporate DOJ and SEC FCPA enforcement actions.
There were 12 core FCPA enforcement actions in 2020. Of the 12 actions, 100 (83%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).