Still Waiting for an FCPA Super Bowl

In a case that was closely watched by Foreign Corrupt Practices Act practitioners, the U.S. Supreme Court denied certiorari in the matter of Esquenazi et al. v. United States. The Court’s decision was not surprising – only about one percent of cert petitions are granted. But interest had been high because FCPA cases are seldom litigated, as defendants usually plead guilty before contesting any issues or going to trial.

As a result, courts have had few opportunities to comment on the statute’s most controversial provisions. The FCPA bar had hoped that Esquenazi would spur a ruling on what an “instrumentality” of a foreign government is. Bribing such an entity is illegal under the Act, but its definition is less clear cut than “officers, employees or departments” of foreign governments, whom the Act likewise prohibits bribing. Until another defendant challenges his/her/its prosecution and, more specifically, challenges the definition of an “instrumentality,” the issue will remain unresolved.

That may occur with another case now winding through the courts. Shortly after the Supreme Court denied Esquenazi’s petition for certiorari, the former CEO of energy company PetroTiger, filed a motion to dismiss FCPA charges against him on grounds similar to those raised by Esquenazi. Sigelman is arguing to Judge Joseph Irenas of the U.S. District Court for the District of New Jersey that employees of the Colombian oil company Ecopetrol SA, who he is accused of bribing, are not instrumentalities of the Columbian government.