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“Foreign Officials” in Puerto Rico?

While reading the DOJ release today regarding the guilty plea of Dr. Candido Negron Mella (see here), I was reminded of a conversation I had a few years back with a former law firm colleague during which we scratched our heads wondering if a Puerto Rico government official could be a “foreign official” under the FCPA. Because the statute defines “foreign official” as being an “officer or employee of a foreign government …” we surmised that the answer was no, but agreed that the question was nevertheless an interesting issue to ponder.

The Mella enforcement action would seem to bear all the hallmarks of an FCPA enforcement action. As set forth in the release, Mella pleaded guilty to conspiracy to violate the Federal Election Campaign Act for “his participation in a corruption scheme involving the 2000 Resident Commissioner campaign of a former governor of Puerto Rico.” The release notes that “Mella was a partner in a company that had a professional relationship with a large Medicaid dental provider in the United States that was interested in obtaining a direct dental agreement with the Commonwealth of Puerto Rico.” According to the release, “[i]n order to assist that provider in obtaining a contract in Puerto Rico” Mella agreed to raise contributions for the campaign and he admitted that he hoped that contributing to the campaign “would enable him to obtain access to the government of Puerto Rico to promote his business interests.”

All the hallmarks of an FCPA enforcement action that is … except a foreign official. At least that is my conclusion from reading the Mella enforcement action and the lack of FCPA charges.

I ponder no more.

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