Esquenazi decision interprets the Foreign Corrupt Practices Act

The decision illuminates the factual questions that must be resolved to satisfy the legal requirements for a prosecution proceeding under the FCPA

Companies doing business internationally no doubt have heard about the rise in claims brought by government agencies against companies and individuals under the Foreign Corrupt Practices Act (FCPA). Our last article focused on ways expenses in defending against such claims — often substantially greater than the amount for which the claims are ultimately resolved — can be contained.

A new decision, U.S. v. Esquenazi, was issued by the 11th Circuit on May 16, 2014, that carefully examines the tests required to determine whether in a given situation the FCPA has, or has not, been violated. The decision, a rare one despite the burgeoning number of prosecutions under the FCPA, clarifies but yet does not simplify what the applicable criteria for prosecution and conviction are. Pertinent to the role of corporate counsel overseeing the defense of such investigations and prosecutions, the decision in fact demonstrates just how wide ranging and fact intensive such an investigation and prosecution might become.

Contributing Author

author image

David McMahon

David McMahon is the Managing Partner in Barger & Wolen LLP’s San Francisco office. His practice focuses on large complex litigation. He has worked on...

Bio and more articles

Contributing Author

author image

Robert G. Levy

Robert Levy is a partner in the San Francisco office of Barger & Wolen LLP. For the past 33 years, he has been defending major...

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.