Two U.S. district courts in Southern California recently rejected defense challenges that might have narrowed the applicability of the Foreign Corrupt Practices Act (FCPA). Both courts rejected arguments that the intended recipients of the alleged bribes—employees of foreign, state-owned enterprises—were not “foreign officials” under the FCPA. These rulings mark the first time that trial courts have set forth factors to be used in identifying the circumstances in which a state-owned enterprise will be considered an instrumentality of a foreign government for purposes of the FCPA.
