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Is Anyone Not a Foreign Official Under the FCPA?

By Jacqueline C. Wolff and Nirav Shah

Recent years have seen a rise in the number of enforcement actions taken by the Department of Justice (DOJ) and the Securities Exchange Commission (SEC) under the Foreign Corrupt Practices Act (FCPA), as well as a notable expansion of the types of conduct covered by these prosecutions. Increasingly, the government has focused on prosecuting individuals and companies for allegedly corrupt payments to officials of state-owned enterprises (SOEs), rather than more traditional government entities.

The FCPA prohibits corrupt payments to “foreign officials,” defining a foreign official as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof … or any person acting in an official capacity for or on behalf of any such government or department … ” 15 U.S.C. ' 78dd-2(h)(2)(A).

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