At the crux of almost every Foreign Corrupt Practices Act (FCPA) internal investigation or government enforcement action involving alleged bribery is the question of whether the individual being allegedly bribed is a “foreign official” pursuant to the FCPA. This is so because the FCPA does not define who can be considered a foreign official. As a result, the government has consistently advocated for a broad interpretations of the term foreign official, attempting to expand the reach of the FCPA to include state-owned enterprises that are not a part of any foreign government and whose employees would then be considered foreign officials.
To date, the appellate courts have not considered the government’s broad interpretations. On May 9, however, two separate appeals challenging the government’s broad interpretations reached the 11th Circuit. Along with the individual defendants, commentators and the defense bar are hoping for a resolution that will limit the government’s overly aggressive interpretations of the FCPA.