January 18, 2022

Volume XII, Number 18

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January 15, 2022

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Cases to Test Who is a "Foreign Official" for the Purposes of the FCPA

U.S. citizens and companies that contract with foreign entities should, of course, be aware of and always cognizant of the Foreign Corrupt Practices Act. Dinsmore & Shohl's D. Michael Crites has previously provided a general background to the FCPA HERE and D&S encourages any individual or entity that does business internationally to familiarize themselves with the requirements of the FCPA. 

Of note, though, three cases pending in the United States have the potential to influence how the FCPA is applied in the future. In those cases, individuals and companies are subjects of criminal prosecution when the "foreign officials" alleged to have been bribed are employees of state-owned entities. The individuals were allegedly employees of various state-owned entities in a number of Asian countries as well as the Comisión Federal de Electricidad (CFE), a Mexican-owned utility company. The defendants involved in those cases have argued that the FCPA was not intended to apply to employees of these entities and that extending the FCPA to those employees would make the statute unnecessarily broad, particularly in those countries where state-owned entities are more prevalent. Meanwhile, the Government has argued that the broader definition is necessary to allow the U.S. to comply with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, of which the U.S. is a signatory. 

Any individual or entity governed by the FCPA should always be careful that its payments are not being used as bribes for future business. But those who do business with state-owned entities in other countries may want to pay particular attention to these cases, given their potential to significantly broaden the scope of the FCPA. The cases are: U.S. v. Stuart Carson, et al. (C.D. Cal.), U.S. v. John Joseph O'Shea (S.D. Tex.), and U.S. v. Enrique Faustino Aguilar Noriega, et al (C.D. Cal.).

© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume I, Number 91
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About this Author

Harvey Jay Cohen, Domestic Foreign Transactions Attorney, Dinsmore Shohl law
Partner

Harvey Cohen is a long-standing, accomplished corporate attorney, uniquely focused on helping clients win by practically, pro-actively and efficiently assisting with their domestic and foreign transactions. With years of studies and dealings abroad, Harvey applies his global experience to address cross-border strategies and complex issues in tandem with client product or service needs, specific industry situations, as well as "must haves" and "must avoids" before crafting any solution or agreement. 

Harvey is known for asking the hard, practical...

513-977-8144
Jacob Manning, Business transactions lawyer, Dinsmore Shohl law firm
Partner

Jacob Manning advises businesses and individuals in a variety of business transactions, both domestic and cross-border. He drafts and reviews contracts, particularly those involving sales of goods, distributorships and licensing, and construction, vendor and service contracts on behalf of boards of education and other public entities. When clients are negotiating a contract, Jacob also provides advice about payment, including guarantees and letters of credit. Should a dispute arise, he represents clients both before US courts and in arbitration subject to international...

304-230-1604
Frank Schuckmann, Dinsmore Law, International Practice Group Lawyer
Of Counsel

Frank Schuckmann is a Partner in the Corporate Department and a member of the International Business Practice Group where he heads the German Desk for the firm. Frank represents domestic and international companies and individuals in the areas of mergers and acquisitions, corporate, financing, securities and customs matters. He specializes in the representation of German companies in their activities in the U.S., as well as representing U.S. companies as they enter Europe.  Recently, he has represented numerous international joint ventures in the area of biotechnology, and particularly...

614-227-4297
Peter Draugelis, Business Corporate Matters, Legal professional, dinsmore lawyer
Partner

Peter Draugelis is a Partner in the Corporate Department. Peter's practice covers a broad spectrum of business and corporate matters, including mergers and acquisitions, finance, supply and distributorship agreements, and international business transactions. He advises clients from small entrepreneurs to Fortune 500 companies concerning forming new businesses, strategic partnering relationships, and general business issues that in-house counsel and executives face on a daily basis. 

513-977-8415
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