Recent Challenges to Definition of Foreign Official Reinforce Governments Broad Interpretation
By JEREMY EVANS & ANANDA MARTIN
Critics of the Foreign Corrupt Practices Act (FCPA), which prohibits U.S. individuals or businesses from bribing foreign officials to gain a commercial advantage, have long criticized the laws broad scope, arguing that its vague terminology and lack of interpreting case law can leave international corporations operating in a grey zone with respect to who is and is not a foreign official covered by the law. In response to the U.S. governments increasingly aggressive approach in prosecuting individuals for alleged FCPA violations, several defendants recently have taken a stand on this unsettled ground, challenging the governments interpretation as a matter of law. While these challenges do not represent the first attack on the Department of Justices (DOJ) definition, they appear to be the first to elicit extensive judicial analysis on the topic. But rather than weaken the governments authority, recent decisions have reinforced DOJs expansive construction of the term foreign official, placing employees of state-owned enterprises (SOEs) squarely within the FCPAs scope.