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ARTICLE · 09 MAY 2011

Judge Issues Opinion on Definition of "Foreign Official"

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In three recent cases, defendants prosecuted under the U.S. Foreign Corrupt Practices Act ("FCPA") challenged their indictments using a similar argument – employees of state-owned entities do not fall within the definition of "foreign official" under the FCPA.

United StatesLitigation, Mediation & Arbitration
Roger Witten
Roger Witten
Jay Holtmeier
Jay Holtmeier
Kimberley Parker
Kimberley Parker
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In three recent cases, defendants prosecuted under the U.S. Foreign Corrupt Practices Act ("FCPA") challenged their indictments using a similar argument – employees of state-owned entities do not fall within the definition of "foreign official" under the FCPA. United States v. O'Shea, No. 4:09-cr-00629 (S.D. Tex. Mar. 7, 2011); United States v. Noriega, No. 2:10-cr-01031-AHM (C.D. Cal. Feb. 28, 2011) (hereinafter "Lindsey Manufacturing"); United States v. Carson, No. 8:09-cr-00077-JVS (C.D. Cal. Feb. 21, 2011). To violate the FCPA, a corrupt payment must be directed to a "foreign official." The FCPA defines "foreign official" as:

any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

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