This post was written by Anne E. Borkovic.

As everyone can cite, the Foreign Corrupt Practices Act (“FCPA”) in part prohibits offering or providing anything of value to a foreign official to obtain or retain business. But what does that mean in practice? Two federal courts are grappling with defining “foreign official” and, in turn, whether the prosecution can establish all the elements of a violation.

In U.S. v. Stuart Carson et al., defendants moved to dismiss and argued that the officers and employees of state-owned companies are not “foreign officials” because the companies are not instrumentalities, departments, or agencies of the foreign government. The FCPA Professor Mike Koehler filed a declaration in support of the motion, detailing the legislative history of the FCPA and the “foreign official” element. A hearing on the motion is set for March 21.

In U.S. v. Enrique Faustino Aguilar, defendants also moved to dismiss under the same argument and have asked the judge to take judicial notice of the Carson declaration.

Of course, we will keep you apprised of developments as the Courts decide this important issue.