April 22, 2011
Written Ruling - Officer or Employee of a State-Owned Croporation Can be a Foreign Official for FCPA Liability
One of the more fascinating FCPA cases is in trial right now. At the start of trial, the court held a hearing on defendant's motion to dismiss the charges. It was claimed that a state-owned corporation could not be a department, agency, or instrumentality of a foreign government and therefore was not a person who was a foreign official for purposes of the FCPA.
The Court therefore looked at the question presented -- "whether an officer or employee of a state-owned corporation can be a 'foreign official' for purposes of FCPA liability."
The court's ruling was discussed here by guest blogger Michael L. Volkov (MayerBrown). Now issuing its written order, the court confirmed its ruling that "a state-owned corporation having the attributes of CFE may be an 'instrumentality' of a foreign government within the meaning of the FCPA, and officers of such a state-owned corporation, as [the individuals mentioned] are alleged to be, may therefore be 'foreign officials" within the meaning of the FCPA."
For a copy of the written decision and commentary see, Richard L. Cassin, FCPA Blog, Lindsey Case: Judge Issues Written Ruling On 'Foreign Official'; Mike Koehler, FCPA Professor, Judge Matz Issues Narrow "Foreign Official" Decision / Calls DOJ Post-Hearing Request "Astounding"
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