The U.S. Supreme Court this week declined to hear a landmark case that would have helped clarify the definition of “foreign official” under the Foreign Corrupt Practices Act. The decision to deny the cert petition effectively upholds the government’s broad view of who qualifies as a foreign official under the FCPA—at least, for now.
In May 2014 the 11th Circuit Court of Appeals, in the case U.S. v. Esquenazi became the first appellate court in FCPA history to tackle what constitutes an “instrumentality” within the FCPA’s definition of “foreign official,” which the statute vaguely defines as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.” Companies have long struggled with whether employees of state-owned entities qualify as public officials under the FCPA, and that ruling provided some guidance on the issue.
