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“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:

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“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.


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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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.” Continue Reading

Healthcare Professionals As “Foreign Officials”


It is one of the more dubious FCPA enforcement theories there is.  It has never been subjected to judicial scrutiny.  It is a relatively new enforcement theory when one considers that the Foreign Corrupt Practices Act was enacted in 1977.  It is an enforcement theory that has been used 35 times since introduced to the FCPA context in 2002 and thus is one of the more obvious reasons for the general increase in FCPA enforcement in the modern era.

It is the enforcement theory that employees (such as physicians, nurses, mid-wives, lab personnel, etc.) of certain foreign health care systems are “foreign officials” under the FCPA and thus occupy a status akin to a President or Prime Minister.

This post traces the origins and prominence of this theory,  contains comments from the former DOJ FCPA enforcement attorney who came up with this theory, and highlights a data point relevant to the legitimacy and validity of this theory.

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The “Foreign Officials” Of 2023

foreign official2

A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2023?

This post highlights the alleged “foreign officials” from 2023 corporate DOJ and SEC FCPA enforcement actions.

There were fourteen corporate FCPA enforcement actions in 2023. Of the fourteen actions, nine (64%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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