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“Foreign Officials” In Golf?


This post from last year pondered whether individuals associated with LIV Golf, financed by the Saudi Arabian Public Investment Fund (“PIF” – one of the largest sovereign wealth funds in the world) are “foreign officials” under the Foreign Corrupt Practices Act given how this element of the FCPA’s anti-bribery provisions has been interpreted by the DOJ and SEC.

The question is perhaps more pressing now given the announcement last week that the PGA Tour, LIV Golf (PIF) and the DP World Tour  “have signed an agreement that combines PIF’s golf-related commercial businesses and rights (including LIV Golf) with the commercial businesses and rights of the PGA TOUR and DP World Tour into a new, collectively owned, for-profit entity.”

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Supreme Court Holds That The Foreign Sovereign Immunities Act Does Not Provide Immunity For Foreign States And Their Instrumentalities From Criminal Prosecution


Earlier today, in a decision (authored by Justice Kavanaugh (and joined by Justice Roberts, Justice Thomas, Justice Sotomayor, Justice Kagan, Justice Jackson – Justice Gorsuch filed an opinion concurring in part and dissenting in part, in which Justice Alito joined), the Court held that the Foreign Sovereign Immunities Act (FSIA) does not provide immunity to foreign states and their instrumentalities from criminal prosecution in the United States.

In terms of relevant background, the opinion states:

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An Informative Read

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This prior post highlighted the recent acquittal of Damodar Arapakota (founder and former chief executive of Toronto-based Imex Systems) by a Canadian judge of a charge of bribery of a foreign public official under Canada’s Corruption of Foreign Public Officials Act (CFPOA)

The actual decision by the Canadian judge (see here) makes for an interesting read in that the CFPOA (while not a carbon copy of the FCPA) does contain many of the same general elements.

While touching upon other CFPOA elements such as mens rea and the meaning of advantage or benefit under the CFPOA, the main reasons the judge found Arapakota not guilty was due to the lack of nexus between the advantage or benefit (travel expenses) given to the foreign official and the discretionary act performed by the foreign official as well as the judge’s conclusion that the discretionary act performed by the foreign official did not satisfy the CFPOA’s “obtain or retain an advantage in business” element.

The logic, reasoning and rationale of the decision are all FCPA relevant.

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The “Foreign Officials” Of 2022

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A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2022?

This post highlights the alleged “foreign officials” from 2022 corporate DOJ and SEC FCPA enforcement actions.

There were ten corporate FCPA enforcement actions in 2022. Of the ten actions, seven (70%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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Friday Roundup


Back to the Bolivian tear gas contract, more misinformation from the FCPA Blog, and surprising.

It’s all here in the Friday roundup.

Back to the Bolivian Tear Gas Contract

This May 2021 post highlighted a DOJ enforcement action against Bryan Berkman, Luis Berkman, Philip Lichtenfeld and Sergio Mendez for their roles in a Bolivian bribery scheme to secure a tear gas contract. Bryan Berkman, a U.S. citizen, was described as owning a Florida company (“Intermediary Company”) that sold tactical equipment including to the Bolivian Ministry of Defense. Sergio Mendez, a citizen of Bolivia, served as an official in the Bolivian Ministry of Government. Luis Berkman, also a U.S. citizen and Bryan’s father, was described as a “close associate” of Mendez as well as an “associate” of co-conspirator 1 (described as a high ranking official in the Bolivian Ministry of Government). Lichtenfeld, a U.S. citizen, is described as an associate of the Berkmans and Mendez.

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